The prosecution must prove guilt beyond reasonable doubt; lapses in investigation and reliance on questionable evidence necessitate acquittal.

JUDGMENT :

Apurba Sinha Ray, J.

1. Being aggrieved by and dissatisfied with the judgment and order of conviction dated 29.06.2015 and 30.06.2015 passed by the Learned Additional Sessions Judge (In-Charge), Fast Track, 4th Court, (Barrackpore) in Sessions Trial No. 2(2) of 2010 [arising out of Sessions Case No. 413 of 2009] convicting the appellants under Section 302/34 of the Indian Penal Code, the instant criminal appeal has been preferred on the grounds, inter alia, that the Learned Trial Judge did not consider the evidence on record in its proper perspective and further the learned Trial Judge did not consider the fact that though there was no whisper in the FIR and inquest report regarding dying declaration of the victim, the Learned Judge has relied upon an afterthought oral dying declaration of the victim beyond authority. The PW1, the defacto-complainant is an interested witness and he was in custody in connection with another case for murdering one Mahendra Chowdhury and, therefore, reliance upon the evidence of PW1 by the Learned Trial Judge, is a misplaced one. The deposition of PW2, an alleged eye witness, cannot be relied upon in view of contradiction taken in the deposition of the investigating officer. Though there was sufficient departure from the initial case in the FIR and subsequent material improvement in the prosecution case, the Learned Trial Judge did not consider the anomalies. There are sufficient vital witnesses who ought to have been examined but actually they were kept outside the process of investigation and trial of the case. Therefore, for non-production of such vital witnesses, adverse presumption is to be drawn against the prosecution case. There are multiple laches in investigation and further, there are ample deficiencies in the prosecution case and, therefore, the judgment and order of conviction as aforesaid is liable to be set aside. Mr. Rahman, learned counsel for the appellants has further submitted that PW3 Babujan Ansari who allegedly took the victim with bleeding injuries to hospital was unable to show that his wearing apparels were blood stained at the relevant time. Moreover, the concerned auto driver in whose auto the victim was allegedly taken to hospital was not examined. The doctor who examined the victim first was also not called on as a witness.

2. The learned counsel Mr. Rahman has also submitted that recovery of the offending weapon is doubtful. No local persons were made seizure list witnesses at the time of recovery of such offending instruments. The learned counsel has also submitted that from the materials on record, it is found that such alleged offending weapon was recovered from places accessible to the general public and, therefore, in view of the settled judicial decisions of the Apex Court such recovery in presence of the witnesses who are close to the de-facto complainant cannot be relied upon. Further recovery of weapons from a public place casts a serious doubt over the process of such recovery. In support of his contention Mr. Rahaman has referred to (2023) 6 SCC 605 (Nikhil Chandra Mondal Vs. State of West Bengal) [relevant paragraph 20], 2023 SCC OnLine SC 1421 (Manju nath & Ors. Vs. State of Karnataka) [relevant paragraph 27]; (2021) 13 SCC 716, Jaikam Khan Vs. State of UP, (2025) SCC OnLine SC 453, Abdul Wahid & Anr. Vs. State of Rajasthan (1993) 3 SCC 282, (2019) 2 SCC 303, State of UP Vs.Wasif Haider & Ors.).

3. The learned counsel for the State, Mrs. Sinha has submitted that although there are some minor omissions, contradictions in the versions of the prosecution witnesses in connection with the depiction of the convicts’ role in the crime, version relating to the role played by and participation of, the appellants had been well established and the prosecution witnesses withstood during their cross-examination and therefore the prosecution case could not be falsified.

4. It is further contended that the ocular version is wholly corroborated by medical eviden