Ashoke Sharma vs State of West Bengal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 889

IN THE HIGH COURT AT CALCUTTA
Debangsu Basak, Md. Shabbar Rashidi, JJ.
Ashoke Sharma & Others - Petitioners
Versus
The State of West Bengal - Respondent
CRA (DB) 103 of 2022 With CRAN 1 of 2022
Decided On : 03-08-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Soubhik Mitter, Adv., Mr. Sanjib Kr. Dan, Adv., Mr. Saryati Dutta, Adv., Mr. Bibaswan Bhattacharya, Adv.
For the Respondent: Mr. P. K. Datta Ld. APP, Mr. Z. N. Khan, Adv., Mr. Santanu Deb Roy, Adv.
For the de facto complainant : Mr. Abhratosh Majumder, Ld. Sr. Adv., Mr. Pramod Srivastava, Adv., Mr. Prabhat Srivastava, Adv., Mr. Pratim Dasgupta, Adv., Mr. Arif Ali, Adv.

Headnote:(A) Indian Penal Code, 1860 - Sections 364A, 302, 201, 120B - Arms Act, 1959 - Section 25(1-B) - Conviction of appellants for kidnapping and murder based on circumstantial evidence and leading statements resulting in recoveries including ransom demands and murder weapon - Challenge to conviction dismissed. (Paras 1-100)

(B) Admissibility of electronic evidence - Certificate under Section 65B deemed necessary; failure leads to inadmissibility. (Paras 3, 4, 91)

(C) Circumstantial evidence must establish complete chain leading to guilt; mere recovery insufficient. (Paras 84, 86, 89)

Facts of the case:
The appellants were accused of kidnapping and murdering the victim, with evidence largely based on circumstantial details and recoveries of materials including ransom demands and a murder weapon used in the crime.

Findings of Court:
The Court found that the prosecution had established the involvement of the appellants in the kidnapping and murder based on recoveries made from their leading statements and circumstantial evidence pointing to their guilt.

Issues: The primary issues included the sufficiency of circumstantial evidence for conviction and the admissibility of electronic evidence without the required certificate.

Ratio Decidendi: The court concluded that the circumstantial evidence and recoveries substantiated the charges against the appellants beyond a reasonable doubt despite challenges regarding the quality of investigative procedures.

Result: Appeals dismissed.

Table of Content
1. conviction details of the appellants (Para 1 , 2)
2. arguments on the prosecution's evidence (Para 3 , 4 , 6 , 12)
3. counterpoint on reliability of witness testimonies (Para 5 , 10 , 11)
4. supreme court principles on admissibility and evidence (Para 84 , 85 , 86 , 87 , 91)
5. conclusion and dismissal of the appeal (Para 98 , 99 , 100 , 101 , 102)

JUDGMENT :

DEBANGSU BASAK, J.

1. The appellants have assailed the judgement of conviction dated May 11, 2022 and the order of sentence dated May 13, 2022 passed by the learned Additional Session Judge, 2nd Court, Tamluk, Purba Medinipur in Sessions Trial No. 1 (9) 16 arising out of Sessions Case No. 10 (8) 14.

2. By the impugned judgement of conviction, the learned Trial Judge has convicted the appellants under Section 364 A/ 302/ 201/ 120B of the INDIAN PENAL CODE , 1860 and under Section 25 (1-B) of the ARMS ACT . By the impugned order of sentence, the learned Trial Judge has sentenced the appellants to suffer rigorous imprisonment for life for commission of offence punishable under Section 364 A of the INDIAN PENAL CODE , 1860 and to pay a fine Rs. 50,000/-each and in default to suffer rigorous imprisonment for six months and to suffer rigorous imprisonment for life for the offence punishable under Section 302 of the INDIAN PENAL CODE , 1860 and to pay a fine of Rs. 50,000/-each and in default to suffer further rigorous imprisonment of six months. He has sentenced the appellants to suffer rigorous imprisonment for 7 years for the offence punishable under Section 201 of the INDIAN PENAL CODE , 1860 and to pay a fine of Rs. 10,000/-each and in default to suffer rigorous imprisonment of three months. Learned Trial Judge has awarded a sentence of rigorous imprisonment for three years for the offence punishable under Section 25 (1-B) of the ARMS ACT and to pay a fine of Rs. 5,000/-and in default to suffer rigorous imprisonment for one month to the appellant No. 3. All the sentences have been directed to run concurrently.

3. Learned advocate appearing for the appellant has submitted that, the prosecution failed to bring home the charges beyond reasonable doubt. He has referred to the testimonies of various prosecution witnesses. In particular, he has referred to the recovery of documentary evidences which the prosecution claimed are incriminating materials as against the appellants. He has contended that, the learned Trial Judge has misapplied the provisions of Section 27 of the Indian EVIDENCE ACT , 1872 in relation to the materials seized by the police. He has contended that, recovery of any article on the leading statement made by an accused in a criminal proceeding ipso facto does not mean that the accused was guilty of the offence charged. In support of such contention, learned advocate appearing for the appellants has relied upon 2017 Volume 11 Supreme Court Cases 160 (Raj Kumar @ Raju vs. State (NCT of Delhi)), 2020 Volume 3 Supreme Court Cases 747 ( Mohd. Younus Ali Tarafdar vs. State of West Bengal ), 2022 Volume 1 Supreme Court Cases 92 ( Bijender @ Mandar vs. State of Haryana ).

4. Learned advocate appearing for the appellants has submitted that, the so-called call record details were without the requisite certificate under Section 65 B of the Indian EVIDENCE ACT , 1872 and therefore such part of evidence was inadmissible. According to him, the learned Judge has erred in relying upon such part of the evidence in convicting the appellants. In support of his contention, he has relied upon 2020 Volume 7 Supreme Court Cases 1 ( Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Others ).

5. Learned advocate appearing for the appellants has submitted that, the evidence of PW 3 was unreliable. The delay in PW 3 informing the police about the incident has raised justifiable suspicion of his testimony.

6. Learned advocate appearing for the appellants has contended that, the case of the prosecution is based on circumstantial evidence. The prosecution had failed to pro