Calcutta High Court (Appellete Side)
Krishna Gopal Das @ Kesto & Anr vs The State Of West Bengal on 30 April, 2025
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
CRA 659 of 2017
With
CRAN 3 of 2023
With
CRAN 4 of 2025
Krishna Gopal Das @ Kesto & Anr.
Vs.
The State of West Bengal
With
CRA 678 of 2017
Shambhu Das & Ors.
Vs.
The State of West Bengal
With
CRA 718 of 2017
Biswanath Das & Ors.
Vs.
The State of West Bengal & Anr.
Before: The Hon'ble Justice Rajarshi Bharadwaj
&
The Hon'ble Justice Apurba Sinha Ray
For the appellants in CRA : Mr. Uday Sankar Chattopadhyay, Adv.
659 of 2017 Ms. Rajarshree Tah, Adv.
Ms. Trisha Rakshit, Adv.
Ms. Aishwarya Datta, Adv.
Mr. Partha Pratim Das, Adv.
Appointed by High Court Legal Services
Committee
2
For the appellants in CRA : Mr. Y. J. Dastoor, Sr. Adv.
678 of 2017 Mr. Prabir Majumder, Adv.
Mr. S. Majumder, Adv.
Mr. D. Shil, Adv.
For the appellants in CRA Mr. Souvik Mitter, Adv.
718 of 2017 Mr. Sumanta Das, Adv.
For the State : Mr. Madhusudan Sur, APP
Mr. Manoranjan Mahata, Adv.
For the appellant no.2 : Mr. Arindam Jana, Adv.
Mr. Avilash Tripathi, Adv.
Mr. Saheb Naskar, Adv.
For the Amicus Curiae Mr. Partha Pratim Das, Adv.
CAV On : 25.04.2025
Judgment On : 30.04.2025
Apurba Sinha Ray, J. :-
1.
These instant appeals have arisen out of Krishnaganj Police Station
Case no. 179 of 2008 dated 06.11.2008 on the complaint of Mithun Das
against 19 accused persons and consequent judgment dated 30.08.2017
whereby the Learned Additional Sessions Judge, Fast Track, 3rd Court,
Krishnanagar, Nadia was pleased to convict 14 accused persons under
sections 302/ 149 of IPC in Sessions Case No. 31(9) of 2009/Sessions Trial
No. I (March) 2011 State Vs. Shambu Das & Ors. The above appeals are to
be disposed of by a common judgment for the sake of convenience.
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CRA 659 OF 2017:
2. The instant appeal was filed by one Krishna Gopal Das and another
namely Kanai Das. Mr. Chatterjee, learned counsel appearing for Krishna
Gopal Das has submitted that no weapon was seized from the spot in
respect of first incident (i.e. Laxmi Danga More).
3. According to him, PW 12 Mithun Das, son of the deceased in his
examination-in-chief stated that iron rods and sabol were used during the
assault of his father but there was no recovery of such weapons. PW 12 also
narrated the name of Gopal Das in his examination-in-chief but no such
Gopal Das is implicated as an accused in the instant case. But he narrated
the name of Krishna Das (probably he indicated the name of appellant
herein) and therefore, identification in court in respect of present appellant
is doubtful. PW12 is a tainted, interested and unacceptable witness and his
deposition was not corroborated by any independent witness. He did not say
the role of the present appellant in the alleged offence.
4. The learned counsel has also contended that though the incident took
place on 06.11.2008, still 8 chargesheeted accused persons are at large.
Therefore, whether or not the absconding accused persons had committed
the offence or the present appellant who faced the trial is doubtful. Learned
counsel submitted that the most vital witness i.e., Renubala Das i.e., the
mother of Ashok Das turned hostile, although the second P.O. was at the
house of Ashok Das.
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5. Mr. Jana, learned advocate appearing for the appellant, namely, Kanai
Das has submitted that there is no evidence against the present appellant
showing that he was involved in the commission of offence. Even during the
examination of the present appellant under section 313 of the Cr.P.C, 1973,
the Learned Trial Court did not put any question indicating his direct
involvement in commission of the crime.
6. Mr. Jana further submitted that in these circumstances, since there is
no single evidence connecting the present appellant (Kanai Das) in the
commission of offence either under section 149 or under section 302 of IPC,
he should be acquitted from the charges.
CRA 678 OF 2017:
7. This is the appeal filed by three convicts namely, Shambhu Das, Sufal
Das and Lakshmi Das. Mr. Dastoor, Learned Counsel appearing for them,
has submitted that the FIR is ante timed if not ante dated. It is claimed that
telephonic conversation revealed the murder in the village. Though the Post
mortem report on Arati Das indicates only one injury by bamboo stick,
PW11 stated that the deceased Arati Das had been mercilessly kicked. No
such injuries have been found by PW17 (autopsy surgeon). Further though
PW12 was an injured eye witness, no doctor has been examined.
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8. One independent witness namely, Chandana (elder sister of PW11)
was examined u/s 164 of CrPC but was not examined in the court. One
Gokul Ghosh had telephoned the PS for informing about the murder.
Though he was examined u/s 161 Cr.P.C. but he was not examined in
court. All the witnesses are not produced in the court to unfold the
prosecution case. An adverse inference for not examination of vital witnesses
should be drawn as observed in case of Bir Singh V. State of U.P, reported
in 1977 (4) SCC 420.
9. The blood stained earth was seized but the FSL report was not
produced in court. In this regard Mr. Dastoor relied upon the case of Babu
& ors. V. State of U.P reported in (1983) 2 SCC 21 and Lakshmi Singh &
Ors. V. State of Bihar, reported in (1976) 4 SCC 394.
10. It was found from materials on record that PW17 stated that he took
both bodies to the morgue and both were received at 04.45 pm on
06.11.2008. But the post mortem report shows that bodies of Arati Das and
Ashok Das were dispatched at 12.53pm and 13.45pm, respectively.
11. The purpose for examination of the accused 313 Cr.P.C. was
completely overlooked. Section 313 Cr.P.C. was to permit an accused to
explain matters in evidence against him but stereotyped questions were put
to all irrespective of their relevance.
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12. Mr. Dastoor relied upon the case of Ram Narain Singh V. State of
Punjab reported in (1975) 4 SCC 497 regarding demeanour of witness. The
testimony of the witness was discredited while he started shaking on every
material point.
13. Lakshmi Das has been named in the FIR as she was an accomplice in
the murder of Arati Das by PW12. But, PW11 (Sikha Das, D/o Arati Das)
has described 5 assailants of her mother, not Lakshmi Das. She was silent
about the presence of PW12, her elder brother at alleged P.O. PW11 never
stated the name of Subol Das which belied the statement of PW12. Thus, to
rely upon the deposition of PW12 is extremely dangerous.
CRA 718 OF 2017:
14. This appeal was filed by nine (9) convicts, but during pendency of the
appeal two of them have expired namely Ananda Das, Narayan Das.
However, Mr. Soubhik Mitter, Learned Counsel appearing for Biswanath
Das, Sukumar Das, Bablu Das, Nanda Das, Anil Das, Sundari Das and Fuki
@ Kuklibala @ Fukibala Das has submitted that eye witnesses failed to
name and identify the appellants as perpetrators in court. It is trite law that
identification of an accused by a witness in court is substantive evidence as
was held by the Hon’ble Supreme Court in case of Dana Yadav @ Dahu &
ors V. State of Bihar, reported in AIR 2002 SC 3325. On this ground
alone, appellants are entitled to be acquitted.
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15. The learned counsel further submitted that evidence of child witness
ought to be corroborated by other materials, particularly in this case, when
the alleged incident occurred PW11 was a child, aged about 9 years only.
The law recognizes a child as a competent witness but a child is not
considered to be a witness whose sole testimony can be relied upon without
other corroborative evidence. The position of law on this issue has been
succinctly explained by the Hon’ble Supreme Court in case Bhagwan Singh
& ors. V. State of Madhya Pradesh, reported in AIR 2003 SC 1088 and
State of Madhya Pradesh V. Rajaram @ Raju, reported in 2019 (2) AICrLR
145 (SC).
16. Mr. Mitter again contended that no injury report of PW12 (injured eye
witness) was placed on record to substantiate the allegation that he had
indeed been injured by the accused persons. Moreover, PW9, PW16, PW15
(family members of deceased) have been turned hostile.
17. Mr. Mitter also submitted that the offending weapons have not been
shown to PW17 (autopsy surgeon). He has not opined that the injuries found
to have been caused to deceased persons were sufficient to cause death.
Therefore it is difficult to conclude as to whether the injuries allegedly
caused to the deceased persons resulted in their death. Such lapses in the
prosecution case entitled the appellant to avail the benefit of doubt.
18. He has also submitted that independent witnesses have not been
corroborated in the prosecution case. As the incident took place in the
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daylight, then it remains unexplained as to why no independent local
witnesses have been examined during trial or why the independent
witnesses such as PW1, PW5, PW10 turned hostile or why independent
witnesses such as PW6, PW7 refrained from stating anything during their
examination.
19. Mr. Sur, appearing for the State, has very fairly submitted that from
the materials on record at least 4 accused namely Krishna Gopal Das (CRA
659 of 2017), Shambhu Das, Lakshmi Das (CRA 678 of 2017) and Fukibala
(CRA 718 of 2017) are liable to be convicted and they have been rightly
convicted. However, so far as the fate of other convicts is concerned, he has
left the matter to the decision of this Bench.
20. According to Mr. Sur, there are sufficient incriminating materials
against the said four convicts since they were named in the FIR and further
identified by the witnesses during trial.
21. Law does not require evidence of a specified number of witnesses to
convict an accused. On the other hand, if the evidence of a single witness
inspires confidence, the same can be relied upon. The PW11 (Sikha Das) and
PW12 (Mithun Das) have categorically deposed about the gruesome killing of
their parents in the open daylight in front of them. There is nothing on
record to disbelieve the deposition of such witnesses. Further, their
9
deposition cannot be brushed aside merely because they are relatives of the
deceased.
Court’s View:-
22. We have considered the rival contentions of the parties and the
judicial decisions submitted by the learned counsel of the appellants. We
have also taken into consideration the impugned judgment of conviction and
order of sentence passed by the learned trial court.
23. Needless to mention, the conviction of an accused purely rests on the
golden principle that the prosecution is to prove its case beyond all sorts of
reasonable doubt, and in doing so the prosecution is under a duty to prove
the relevant facts by producing best evidence required for the purpose. If
the first principle is the goal/end of the prosecution, the principle of
proving relevant facts by producing best evidence is the mode by
which such an end can be achieved. In order to award conviction and
sentence in a criminal trial, it is the duty of the trial court to see that
these twin principles dwell together, and not in isolation.
24. With utmost humility, we would like to say that the learned trial
court’s judgment is not very much indicative to the effect that the relevant
facts were proved by producing best evidence before him.
25. Undoubtedly and undeniably, murders of Ashoke Das and his wife
Arati Das took place on the same day at a short interval. There is absolutely
10
no denial of such a fact. Therefore, the prosecution is only to prove that the
present appellants were the actual assailants who caused the death of the
aforesaid couple on the day of occurrence.
26. During trial, the prosecution has produced 20 witnesses and out of
such number of witnesses, i.e., PW 1 (Adhir Das), PW5 (Gokul Chandra
Ghosh), PW9 (Renubala Das), PW10 (Tapas Rudra), PW15 (Sridam Das),
PW16 (Kalyani Das) allegedly the eye witnesses, were declared hostile and
PW13 (Asim Chakraborty), PW17 (Dr. Ajit Kumar Biswas), PW18 (ASI
Sukdeve Dey), PW19 (Ex SI Jaharlal Chatterjee) and PW20 (SI Rajesh Kumar
Gupta) were official witnesses, and PW4 (Asish Majumdar) and PW14
(Sankar Bag) were seizure list witnesses who had no direct knowledge of the
occurrence. The other witnesses did not state anything against the convicts.
Only two witnesses namely Sikha Das (PW11) and Mithun Das (PW12) being
one of the daughters and one of the sons of the deceased respectively had
supported the case of the prosecution.
27. Admittedly PW11, Sikha Das was not present at the place of murder of
her father, Ashoke Das and therefore, she was not an eyewitness to the
incident of murder of her father. She was an eyewitness to the murder of her
mother. We shall discuss her evidence later on.
28. The PW12, Mithun Das claimed, during his deposition that he was
present at the place of occurrence where his father was brutally murdered,
but unfortunately, the said fact was not specifically stated in the FIR.
11
However, in the FIR, it was stated that his father left for Duttaphulia at 7:30
a.m. Subsequently at 9:00 a.m. his father reached Laxmi Danga More,
which is 3/4 minutes walking distance from his house, with his van
rickshaw loaded with some wooden articles, where he was attacked by 12
person namely Shambhu Das, Narayan Das, Maharaj Das, Sona Das, Kesto
Das, Kanai Das, Akale Das, Santosh Das (Matal), Bablu Das, Mahendra
Das, Uttam Das, Ananda Das and others. His father was assaulted by sharp
cutting weapons such as da, shikda, rod etc. which the assailants were
carrying. He tried to save his father but he was also attacked by Shambhu
Das, one of the convicts in CRA No. 678 of 2017 and being injured, he fled
away from the spot.
29. During his evidence, the PW12 (Mithun Das) named Gopal Das (who
was not an accused either in the FIR or in the chargsheet also), Nemai Khora,
Mahendra Das, Soro Das (female) Shambhu Das, Krishna Das, Biplab Das
as accused persons. He was unable to recollect the names of other accused
persons. Further, at the time of such deposition, he was able to identify
Lamxmi Das, Shambhu Das, Soro Das, Nemai Khora, Mahendra Das, Soro
Das daughter of Manindra Das. The learned Trial Judge recorded the
demeanour of PW12 signifying his nervousness, as he was trembling at the
relevant time. Neither, he named other convicts nor identified them. He has
further deposed that the accused persons who assaulted his father
ransacked their house and looted the articles therefrom. When his mother
tried to prevent them, Soro Das, Mahendra Das, Laxmi Das and others
12
assaulted his mother with bamboo. However, he has categorically denied
that a good number of criminal cases were pending against his father or that
Majdia people killed him as he was a dacoit/thief.
30. PW11, Sikha Das, aged about 13 years at the time of her deposition
has stated, inter alia, that on the fateful day she and her elder sister were
inside their house and their mother was cleaning fishes near a water tap
(Kol-tala). At that time, they heard a hue and cry and after coming out, they
saw that Nemai Khora, Kukdi, Mahendra, Chapala, Sarod rushed to the said
water tap and started assaulting her mother with raw bamboo and sabol. At
that time, her mother fell down and then those persons assaulted her with
their kicks mercilessly. Ultimately her mother died. The accused persons
ransacked their house and they put their house on fire. Her statements were
recorded by a Magistrate under section 164 Cr.P.C. But in her cross-
examination she has stated that she gave the statement before the learned
Magistrate as police tutored her to say like that.
31. It is very much significant that PW11 has said that she saw that
Nemai Khora, Kukdi, Mahendra, Chapala and Sarod rushed to the spot
where her mother was. She never said that any other accused entered their
house at that point of time. Therefore, there is a serious contradiction
between her deposition and the deposition of her brother, Mithun Das
regarding the actual number of the accused present there at that point of
time.
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32. In view of PW 11’s admission that she was tutored by the police at the
time of recording her statement under section 164 Cr.P.C., the judicial
Magistrate who recorded such statement under section 164 Cr.P.C. should
have been called for as a witness to understand whether before recording
such statement, the witness who is PW11 herein, was duly apprised of that
she was to state fearlessly and without being bogged down by any external
pressure. But no attempt was made from the side of the prosecution to
produce the concerned judicial Magistrate as a witness to dispel such
inconsistency.
33. From the FIR, the deposition of PW11 and PW12 coupled with medical
evidence, it was revealed that the death of Ashok Das and his wife were
occurred due to assault with the help of sharp cutting weapons like, Da
(Katari), Shikda, and also by rod, bamboo, sabol etc. It is also the specific
allegation that the accused were carrying those instruments with
themselves. If that be so, the investigating agency should have attempted to
recover those instruments. But, unfortunately, it appears that no such
instruments were seized by the I.O. from the possession of the accused
persons. Astonishingly, no such attempt for recovering such deadly weapons
was initiated at the instance of the concerned Investigating Officer. Most of
the accused were arrested soon after the incident, and therefore, an attempt
should have been made by the I.O. to recover such offending weapons which
could have led more credence to the prosecution case, apart from relying
upon only the oral evidence of the deceased’s son and daughter. Further,
14
there was an allegation that the accused looted some articles from the house
of the complainant. Any recovery of such articles from the accused could
have created much force in favour of the prosecution case. But
unfortunately no attempt for recovery of offending weapons nor looted
articles was made on behalf of the investigating officer by taking the accused
in police custody. In certain situations, the oral evidence of the eye
witnesses coupled with recovery of the offending weapons, looted articles
etc., from the possession of concerned accused would have been the best
piece of evidence to show the connection between the accused and
commission of the offence. Unfortunately, that is missing in this case, and
the learned Trial Judge did not consider this vital aspect particularly when
the evidence of PW11 and PW12 are not free from blemishes.
34. Hence, the investigation is appeared to be perfunctory. Without taking
any steps to recover the offending articles, the I.O. had submitted
chargesheet much after the statutory period was over, and thereby
facilitating most of the accused to obtain statutory bail. Therefore, we have
strong doubt about the competence, ability and good intention on the part of
the concerned I.O., Mr. Jaharlal Chatterjee in carrying out the investigation
needed for the purpose.
35. Now, if we turn to framing of charge, we shall find that there are some
vital mistakes committed by the Learned Trial Court. If we peruse the
original FIR which was written in Bengali, we shall find that the said written
complaint/FIR speaks of two incidents, that is, murder of Ashok Das and
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secondly the murder of Arati Das, the wife of Ashok Das. The original FIR
shows that at the time of occurrence of second incident, that is, the murder
of Arati Das the FIR maker PW12 has specifically stated that at that time the
accused who assaulted his father along with accused Nemai Das (Khora),
Sundari Das, Fuki Das, Laxmi Das, Swar Das, Sikha Das, Chapala Das and
others started assaulting Arati Das, and the wife of Nemai Das, namely,
Laxmi Das and Sundari Das assaulted her mother on her head heavily and
as a result of which she died on the spot. If we peruse the formal charge, we
shall find that charges have been framed against all the accused persons
including the accused of the second incident jointly. Furthermore, in the FIR
there was no whisper that at the time of first incident the above accused
namely Nemai Das (Khora), Sundari Das, Fuki Das, Laxmi Das, Swar Das,
Sikha Das, Chapala Das were present at Laxmi Danga more along with the
alleged unlawful assembly. Therefore, we find that the framing of charge was
also not done properly.
36. Hence, from the above materials on record it appears that the
prosecution has relied upon only two witnesses namely PW11 and PW12
along with the medical evidence produced before the concerned trial court.
But, it appears to us that the presence of PW12 at the place of occurrence at
the relevant date and time has not been proved beyond doubt. It is alleged
by the PW12 in his FIR that when he tried to save his father he was injured
by one of the accused with the help of a katari (a sharp cutting instrument)
and for which he was taken to hospital by a concerned police personnel by a
16
bike. But, unfortunately no medical evidence was produced from the side of
the prosecution to lead credence to the allegation of PW 12 in that regard.
The chargesheet has also discussed such a fact and for which the accused
were also chargesheeted, inter alia, under section 324 of IPC but
unfortunately no charge was framed on that issue. During his deposition the
PW12 did not state anything about such alleged injury occurring on his
right hand at the instance of one of the accused. No injury report was also
collected by the concerned investigating officer. But in our view the said
piece of evidence could have been the best evidence to show that the PW12
was present at the relevant place of occurrence on the date and time as
mentioned above. Furthermore, the PW11 did not say that his brother
Mithun Das was present in their house at the time of second incident.
37. However, the PW12 Mithun Das has alleged that such assaults upon
his parents were done by the accused as there was a previous grudge over
certain issues. The PW12 did not disclose the nature and extent of such
grudge between the parties. Therefore, the learned court should have been
very much circumspect to make it double sure that there was no intention
on the part of the PW12 to implicate the accused persons falsely due to such
admitted grudge between parties. The learned Trial Judge did not consider
this issue also.
38. Undoubtedly, the number of witnesses required to prove a criminal
case is not at all very much important. But if the evidence of a witness or a
few witnesses inspire(s) confidence in the judicial mind of the court and
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such evidence are free from blemishes, there is no predicament to convict
the accused on the basis of such evidence. But in this case, we find there
are so many lacuna in the evidence of PW11 and PW12. Firstly the PW11
admitted in her cross-examination that she was tutored at the time of
recording her statement under section 164 Cr.P.C. at the instance of the
police personnel and further, there was a contradiction between her
statement and that of his brother regarding the actual number of assailants
in committing the murder of her mother. Moreover, she didn’t say like his
brother that Laxmi Das assaulted her mother. Therefore, it is very much
difficult to rely upon such testimonies of PW11 and PW12 without
corroborative evidence. In fact, the evidence of PW11 and PW12 are
inconsistent, incoherent and mutually destructive.
39. Therefore, in conspectus of all, we find that the prosecution was
unable to prove the guilt of the convict persons beyond all sorts of
reasonable doubts and further the Learned Trial Court has failed to
appreciate the evidence in its proper perspective and hence, we are inclined
to allow these appeals being no. CRA 659 OF 2017, CRA 678 OF 2017, CRA
718 OF 2017 on contest. The convicts Krishna Gopal Das, Kanai Das,
Shambhu Das, Sufal Das, Lakshmi Das, Biswanath Das, Sukumar Das,
Bablu Das, Nanda Das, Anil Das, Sundari Das and Fuki @ Kuklibala @
Fukibala being found not guilty are hereby acquitted from the charges
levelled against them under section 386(b)(i) of Cr.P.C. corresponding to
Section 427(b)(i) of BNSS. They be released and set at liberty at once, if not
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wanted in any other case. The impugned judgment dated 30.08.2017 passed
in Sessions Case No. 31(9) of 2009/Sessions Trial No. I (March) 2011, State
Vs. Shambu Das & Ors. by the Learned Additional Sessions Judge, Fast
Track, 3rd Court, Krishnanagar, Nadia is hereby set aside. The sureties are
discharged from bail bonds, if any.
40. We appreciate the assistance provided to us by the Learned Advocate
Mr. Partha Pratim Das, appointed by High Court Legal Services Committee.
41. Let a copy of this judgment along with the original record be returned
to the concerned court immediately.
42. CRA 659 of 2017 With CRAN 3 of 2023 and CRAN 4 of 2025, CRA 678
of 2017 and CRA 718 of 2017 are accordingly disposed of.
43. Urgent photostat certified copies of this Judgment, if applied for, be
supplied to the parties on compliance of all necessary formalities.
I Agree.
(RAJARSHI BHARADWAJ, J.)
(APURBA SINHA RAY, J.)
