IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 305 of 2002 Gopal Mondal -Vs-

The State of West Bengal For the Appellant : Mr. Dipayan Dan (Amicus Curiae)

For the State : Ms. Avishek Sinha Heard on : 19.03.2024, 12.06.2024 Judgment on : 25.04.2025 Ananya Bandyopadhyay, J.:-

1. This appeal is preferred against the judgment and order of conviction dated

27.08.2002 passed by the Learned Additional Sessions Judge, 2nd Court, Malda in Sessions Trial No.41/2002 arising out of Sessions Case No.07/2002 convicting the appellants under Sections 307/324 of the Indian Penal Code and sentencing the appellant rigorous imprisonment for 5 years and to pay fine of Rs.2000/- in default rigorous imprisonment for 2 months for the offence of under Section 307 of the Indian Penal Code.

2. The prosecution case precisely stated on 25.12.1999 at about 06:00 p.m., the son-in-law of the complainant i.e., the appellant went to his house accompanying a person when the complainant’s daughters were present. The appellant offered them ‘piyaji’. They told him to kept it aside. The appellant and his companion thereafter went towards the side of the courtyard of the house and fired the victim and escaped.

3. On the basis of the written complaint filed by one GUnadhar Mondal, he started Kaliachak P.S. Case No. 343/99 dated 25.12.1999 under Sections

326/307 of the Indian Penal Code against the appellant.

4. After completion of investigation, the Police submitted charge-sheet under Sections 326/307 of the Indian Penal Code against the appellant to whom he pleaded not guilty and claimed to be tried.

5. In order to prove its case, the prosecution examined as many as 12 witnesses and exhibited certain documents.

6. The Learned Amicus Curiae representing the appellant submitted that:-

i. The evidence of PW-2, the informant was that he along with his wife went to the Hat at Madhughat to sell Muri and on their return from the Hat, he found Sabitri Mondal i.e., his daughter on injured condition and heard the incident from her.

ii. The conviction and sentence of the appellant was mainly based on hearsay evidence inasmuch as the evidence of PW-3, PW-4 and PW-6 who came to the spot and learnt about the incident was based on hearsay.

iii. The evidence of PW-7 who claimed to an eye witness of the occurrence suffered from serious infirmities.

iv. PW-8 being the younger sister of the victim was an interested witness whose evidence was unreliable.

v. The conviction and sentence of the appellant was mainly based on testimony of PW-2, PW-3, PW-4, PW-6, PW-7 and PW-9 whose evidence was based on hearsay.

vi. PW-5, the doctor who treated the victim deposed that the victim did not disclose to have been shot by the appellant.

7. The Learned Amicus Curiae representing the appellant further submitted that:-

i. There was no independent eye witness of the incident. The only eye witness i.e., PW-11, the sister of the victim had stated in her cross- examination that there was no altercation or threatening by the appellant to the victim. She further stated that she had noticed the pistol of the appellant when he was offering Piyaji to them but she did not draw her sister’s attention towards it.

ii. The evidence of PW-12 who was the Investigating Officer of the case in his cross-examination revealed no blood stained apparels were seized by him. He further stated that there was no blood stain at the place of occurrence. The officer failed to seize the gun that was used.

iii. The evidence of PW-5 i.e., the doctor under whom the victim was admitted, stated that from C.T. Scan he found a bullet which he removed. The bullet was not recovered thereafter. He had stated in his cross-examination that “fracture of Spinous process of 6th dorsal vertebra may be caused by sudden and forceful impact with hard and blunt substance.”

iv. The case was mainly based on hearsay evidences. Other than the victim and her sister no independent witness i