Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Cal) 1

IN THE HIGH COURT AT CALCUTTA
RAJASEKHAR MANTHA, AJAY KUMAR GUPTA, JJ.
Asan Ali Sk. - Appellant
Versus
The State of West Bengal – Respondent
CRA 538 of 2015 With CRA 551 of 2015 With CRA 673 of 2015 With CRA 779 of 2015
Decided On : 02-01-2025

Advocates Appeared:
For the Appellant : Mr. Debabrata Roy, Mr. Prabir Majumdar, Mr. Snehasish Majumdar, Ms. Sarbani Mukhopadhyay, Ms. Soumik Mondal, Mr. Fazlur Rahman, Md. Babul Hussain.
For the State : Mr. Debasish Roy, Ld. P.P, Mrs. Amita Gaur, Mrs. Puspita Saha.

The prosecution must prove guilt beyond reasonable doubt; inconsistencies in witness testimony and lack of evidence led to the acquittal of the appellants.

Headnote:(A) Indian Penal Code, 1860 - Sections 302 and 34 - Indian Explosives Act - Section 9(b) - Conviction for murder - Appellants convicted for life and fined for the murder of Chhoto Sajamal Sheikh, who was assaulted with firearms and sharp weapons - The trial court relied heavily on the testimony of a key witness, which was later found to be inconsistent and unreliable - The prosecution failed to produce vital evidence and witnesses, leading to doubts about the appellants' involvement. (Paras 2, 21, 25)

(B) Principle of Parity - When co-accused in the same FIR are acquitted, others cannot be convicted without specific evidence against them - The court emphasized that the prosecution must prove guilt beyond reasonable doubt, which was not achieved in this case. (Paras 22, 24)

Facts of the case:
The appellants were convicted for the murder of the victim, who was attacked with bombs and sharp weapons in front of a tea stall. The incident occurred on 31st July 2014, and the FIR was lodged shortly after. (Paras 3, 4)

Findings of Court:
The court found that the trial judge relied on inconsistent witness testimony and that the prosecution failed to produce key evidence, leading to a lack of proof beyond reasonable doubt. (Paras 20, 21)

Issues: The main issues included the reliability of witness testimony and the implications of acquittals of co-accused on the convictions of the appellants. (Paras 21, 22)

Ratio Decidendi: The court ruled that the prosecution's failure to produce vital evidence and the inconsistencies in witness statements undermined the conviction, emphasizing the principle that guilt must be proven beyond reasonable doubt. (Paras 20, 21)

Result: Appeals allowed; the conviction and sentence were set aside, and the appellants were acquitted.

JUDGMENT :

(Rajasekhar Mantha, J.)

1. Each of the aforesaid appeals is directed against the judgment dated 4th August, 2015 and the order of conviction dated 5th August, 2015 passed by the learned Additional Sessions Judge, Second Court at Krishnagar in Sessions Case No. 27(3)2015.

2. By the said judgment, each of the appellants, namely, Kajal Sheikh, Kalu Sheikh, Raju Sheikh @ Nera, Asan Ali Sheikh and Sahajamal Sheikh were convicted under Sections 302 and 34 of the Indian Penal Code for life. They were also directed to pay a fine of Rs.10,000/- each, in default whereof, they were to undergo rigorous imprisonment for another six months.

3. The facts relevant to the instant case are that on 31st July, 2014 at about 8:30 P.M., Chhoto Sajamal Sheikh (the victim) was sitting in front of a tea stall owned by Badar Shah/Sheikh. The accused persons are stated to have approached the victim and initially threw country made bombs to scare away the persons around. The accused then assaulted the victim with fire arms and sharp cutting weapons. The victim sustained grievous injuries and died on the spot.

4. A complaint was lodged immediately thereafter at about 35 minutes past midnight (1st August, 2014) by the paternal aunt of the victim (PW-1) Hachina Bibi. FIR No.228 of 2024 dated 01.08.2014 was registered under Section 302 read with Section 34 of the Indian Penal Code and Section 9(b) of the Indian Explosives Act. However, it appears from the records that U.D. Case No. 23 of 2024 dated 01.08.2014 was also registered. The inquest was conducted on 1st August, 2014 in the early hours around 1:05 A.M.

5. The complainant specifically mentioned the names of the appellant and one Raju Nyara, Riyajuddin, Asadul Shah, Ajad Sheikh, Bara Samsul Sheikh, Giyas Sheikh and Kalu Sheikh as persons who assaulted the victim, her nephew.

6. While framing charges by the learned Trial Court, in addition to Sections 302 and 34 of the Indian Penal Code and Section 9(b) of the Indian Explosives Act also framed charges under Section 27 of the Arms Act. The Trial commenced thereafter.

7. PW-1 was Hachina Bibi deposed as a de facto complainant of the instant case. She stated that on the date of the occurrence, the victim came to her house and spoke to her. She thereafter went to a local tea stall belonging to Badar Shah/ Sheikh along with the victim. After seeing him off at the tea stall, she returned to her house. She thereafter heard the victim shouting loudly, asking to call the police. She stated that the appellant Sajamal, also known as Baro Sajamal, shot the victim with a gun. The other appellants assaulted the victim with a Dao (sharp cutting instrument used in agriculture). PW-1 was stated to be standing near a Chatka Tree (Devil Tree/Saitan Tree). She further stated that the other accused persons also assaulted the victim with sharp cutting weapons. She claimed to have seen the incident despite the fact that it was dark by 8:30 P.M. because of electrical lights nearby. In cross-examination, she denied that the police recorded any statement from her.

8. PW-2, Mucha Karim Sheikh, who was a resident of the village. His house was next to the tea stall. He heard the victim calling for the police in a loud voice. He also heard bomb blasts and then came out of his house. He found the dead body of the victim near to a Metal Road. He also found two persons, namely, Hachena and Jamat calling other persons to take the victim to the hospital. He denied having been examined by the police. After being declared hostile, in cross-examination by the prosecution he named the appellant Bara Sajamal, Raja Sheikh, Nara Sheikh, Ashadul Sheikh, Giyas Sheikh and 6-7 others assaulting the victim with sharp cutting instruments like Hasua and Bhojali. He had also put his signature on the seizure list and identified the same. None of the seized articles were, however, confronted to the PW-2 or produced in Court by the prosecution.

9. PW-3, Akli Bibi was a resident of the said village. She w