Calcutta High Court (Appellete Side)
The State Of West Bengal vs Baladeb Paul on 12 March, 2026
Author: Arijit Banerjee
Bench: Arijit Banerjee
2026:CHC-AS:399-DB
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Death Reference No. 8 of 2025
The State of West Bengal
Vs.
Baladeb Paul
With
CRA (DB) 272 of 2025
Baladeb Paul @ Baldeb Paul
Vs.
The State of West Bengal and Ors.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellants : Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. Rabi Sankar Chattopadhyay, Adv.
Mr. Uday Sankar Chattopadhyay, Adv.
Mr. Suman Chatterjee, Adv.
Mr. A. R. Bhattacharya, Adv.
Ms. Trisha Rakshit, Adv.
Mr. S. Rakshit, Adv.
Ms. B. Chakraborty, Adv.
Ms. S. Parveen, Adv.
For the State : Mr. Debasish Roy, ld. P.P.
Ms. Anasuya Sinha, Adv.
Ms. Amita Gour, Adv.
Reserved on : 22.01.2026
Judgment on : 12.03.2026
2026:CHC-AS:399-DB
Apurba Sinha Ray, J.:-
1.
At the very beginning of the hearing on death reference, the learned
Public Prosecutor Mr. Roy, in his usual fairness, submitted that
whether the death sentence of the convict Baladeb Paul will be
confirmed or not, or whether the death sentence will be commuted to
life imprisonment or not, all such questions are left to the Court for
decision. He fairly pointed out that the guidelines issued by the Hon’ble
Supreme Court from time to time in Bachan Singh vs. State of Punjab
(1980) 2 SCC 684, Machhi Singh v. State of Punjab (1983) 3 SCC
470, Manoj and Ors. vs. State of Madhya Pradesh (2023) 2 SCC 353
and so on which settled the law regarding the duties of learned Trial
Judges in imposing Death Sentence, were not properly taken into
consideration in the impugned judgment imposing death sentence upon
the convict. Mr. Roy has very candidly said that the concerned learned
Trial Judge should be sent for appropriate training in Judicial Academy
for upgrading his knowledge in this regard. However, learned Public
Prosecutor has drawn the attention of this Court to the depositions of
PW 1 Tahera Begum, being the defacto complainant, PW 6 Sk. Sairaf
Ali, PW 7 Samir Malik, PW 8 Kajal Kr. Roy, PW 9 Fatik Mallick, PW 10
Sk. Nausher Ali, PW 11 Choudhury Azahar Ali and also the depositions
of official witnesses. According to him there is no iota of doubt that the
deceased was killed by Baladeb Paul by firing on the left ear of the
deceased and at the time of incident the said convict was being
accompanied by other convicts after forming an unlawful assembly with
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the common object to murder Naimuddin Khan. Mr. Roy further
submitted that several witnesses of the prosecution were declared
hostile but the deposition of other witnesses clearly show the
involvement of the convict on death row and other convicts. When an
unlawful assembly with an illegal object gheraoed the deceased and one
of them opened fire upon the deceased, each and every member of that
unlawful assembly with the common object is liable for the same
punishment. However, all the vital witnesses excepting the hostile
witnesses, named the present petitioner as the person who opened the
fire by his gun, and he was rightly convicted and this Court may
confirm the death sentence if it finds that the guidelines of the Hon’ble
Apex Court in this regard have been duly followed; otherwise, the death
sentence may be commuted to life imprisonment.
2. Learned Senior Counsel Mr. Bhattacharyya, appearing for the convict
Baladeb Paul, submitted that the impugned judgment is not
sustainable in law since the framing of charge was not properly done
for the offences allegedly committed by the death row convict. He has
strong belief that the death sentence is not sustainable in the eyes of
law since several guidelines issued by the Hon’ble Supreme Court
regarding imposition of death penalty were not at all discussed in the
relevant judgments. Learned Counsel pointed out several defects in
the impugned judgment. From the formal FIR it transpires that the
timing of filing FIR on 09.12.2011 is shown at 11.35 Hrs. as well as at
14.05 Hrs. although the alleged incident occurred on 09.12.2011
around 11.00 am. Both the GDs as mentioned in the formal FIR are
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missing. There was no cross-examination on this issue. The inquest
report shows that the witnesses who were allegedly present at the spot
of occurrence, stated before the Inquest Officer that unknown persons
opened fire on the deceased and as a result of which the death
occurred. Mr. Bhattacharyya further submitted that if the witnesses
knew the names of the assailants, why the same was not narrated
before the Officer conducting the inquest report. He also submitted
that not a single independent witness supported the prosecution case.
Four local witnesses were declared hostile. PW 3 being one of the
prime witnesses did not support the prosecution case. Although PW 6
stated that he was also injured, there was no injury report to that
effect. From the depositions of PW 7 and PW 8, it appears that there
were a number of people armed with firearms but not a single firearm
was recovered. It was also argued by Mr. Bhattacharyya that neither
any weapon was recovered nor any ballistic report was received during
trial. Mr. Bhattacharyya relied upon the following judgments
regarding his contention.
i) Anil vs. State of Maharashtra reported in (2013) 12 SCC
441 relied on paragraphs 2, 3, 9, 10, 12, 13.
ii) Sadananda Mondal vs. State of West Bengal reported in
(2013) 15 SCC 293 relied on paragraphs 2, 3, 4, 5, 12 to
15.
iii) Ram Laxman vs. State of Rajasthan reported in (2016)
12 SCC 389 relied on paragraphs 3,4,7,8.
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iv) Javed Masood and Another vs. State of Rajasthan
reported in (2010) 3 SCC 538 relied on paragraphs 3 to 9,
11, 12, 16 to 19, 22 to 24.
v) Ram Singh vs. State of Uttar Pradesh reported in (2024)
4 SCC 208 relied on paragraphs 4, 5, 13, 13.1, 13.2, 13.3,
14, 14.1, 15, 15.1, 16 to 23, 27 to31, 38, 39.
vi) Manoj and Others vs. State of Madhya Pradesh reported
in (2023) 2 SCC 353 relied on paragraphs 248 to 252.
3. Mr. Bhattacharyya drew our attention to the deposition of PW 18
Sakkhi Gopal Ghosh, the first Investigating Officer who stated in
cross-examination that none of the witnesses mentioned names of the
assailants during investigation under Section 174 of Cr.P.C.
4. Mr. Bhattacharyya also argued that from the statement of PW 7, it will
be found that after about 25 minutes of the incident the police
personnel of Goghat Police Station reached the spot and took the
victim Naimuddin to Arambagh Hospital and it is also proved from the
deposition of PW 6 Sairaf Ali that after half an hour of the incident
police personnel came to the spot and picked up Naimuddin and took
him to the hospital.
5. PW 8 Kajal Roy stated in his examination-in-chief that after about half
an hour police came to the spot, and then police went to the spot
where Naimuddin was lying with bleeding injuries and thereafter
Police personnel took Naimuddin in their van to Arambagh Hospital.
PW 3 and PW 8 did not state the name of any assailant in the inquest
report. On the contrary PW 1 (FIR maker) in her cross-examination
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stated that after discussion with local leaders of the Trinamool
Congress Party including Kajal Roy and his friend, the written
complaint was drafted.
6. The learned counsel has also drawn our attention to the deposition of
PW 11 wherein he stated that after demise of Naimuddin a big rally
took place and after the said rally there was a discussion that the
persons who killed Naimuddin shall be punished in accordance with
law and how it should be effected.
7. PW 6, PW 7 and PW 8 stated that they were attacked by the accused
persons/convicts but no injury report was filed to substantiate their
claim.
8. It was also submitted that the place of occurrence of the crime could
not be ascertained and therefore, when the place of occurrence was
not proved beyond doubt then other circumstances are hardly
sufficient to establish the guilt of the accused. There are serious
contradictions in the ocular evidence and the medical evidence. There
is certain contradictory medical evidence in the evidence of the
prosecution. In her cross-examination PW 14 has deposed that they
were not confirmed about the actual cause of death of the deceased.
9. According to PW 15 Dr. Nirmalya Roy, the post mortem report is an
incomplete one. There is no chemical analysis of the stomach content,
brain, nail, hair and skin around the wound, liver, lung and kidney,
etc. in the FSL Report. There is also no comment about the bullet.
Therefore, in view of this report, it is not possible for him to form any
final opinion which they reserved in their Post Mortem Report. If the
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version of the prosecution witnesses is to be believed then Naimuddin
was sitting and Baladeb Pal was standing in a very close range.
Therefore, the trajectory of the shot would be from a height
downwards. In this regard, Mr. Bhattacharyya has drawn the
attention of this Court to the deposition of the PW12 medical officer
who stated that if the gun shot injury is done in a straight way then
the entry point of the said gun shot injury must be circular in shape.
But if the gun shot injury is done in an angular way then the entry
point of the said gunshot injury must be Pear seed in shape.
10. PW 12 has deposed that as per their report they did not find
circular shape and pear seed injury. The investigation was not
properly done as per the argument of the learned counsel of the
defence. There are several loopholes. According to Mr. Bhattacharyya
the death sentence should not be confirmed in view of such lacuna in
the investigation as well as in the judgment under challenge.
Court’s view
Chapter-I -[Death Reference No. 8 of 2025]
11. In Machhi Singh and Others vs. State of Punjab, reported in
(1983) 3 SCC 470 the Hon’ble Apex Court has been pleased to lay
down certain guidelines for the Trial Judges to consider before
imposition of death penalty upon the convict. In para 38 of the said
decision the Hon’ble Apex Court has been pleased to discuss the case
law of Bachan Singh vs. State of Punjab (1980) 2 SCC 684 and has
been pleased to observe that the following propositions emerge from
Bachan Singh (supra):-
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” i) The extreme penalty of death need not be inflictedexcept in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the
circumstances of the “offender” also requires to be
taken into consideration along with the circumstances
of the “crime”.
(iii) Life imprisonment is the rule and death sentence
is an exception. In other words death sentence must
be imposed only when life imprisonment appears to
be an altogether inadequate punishment having
regard to the relevant circumstances of the crime, and
provided, and only provided, the option to impose
sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant
circumstances.
(iv) A balance-sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck
between the aggravating and the mitigating
circumstances before the option is exercised.”
12. In Ramnaresh and others vs. State of Chhattisgarh reported
in (2012) 4 Supreme Court Cases 257, the Hon’ble Supreme Court
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has been pleased to quote the observation of the Hon’ble Apex Court
in State of Maharashtra vs. Goraksha Ambaji Adsul reported in
[(2011) 7 SCC 437] in the following words:
“The language of Section 354(3) CrPC
demonstrates the legislative concern and the
conditions which need to be satisfied prior to
imposition of death penalty. The words, „in the
case of sentence of death, the special reasons
for such sentence‟ unambiguously demonstrate
the command of the legislature that such
reasons have to be recorded for imposing the
punishment of death sentence. This is how the
concept of the rarest of the rare cases has
emerged in law. Viewed from that angle, both
the legislative provisions and judicial
pronouncements are ad idem in law. The death
penalty should be imposed in the rarest of rare
cases and that too for special reasons to be
recorded. To put it simply, a death sentence is
not a rule but an exception. Even the exception
must satisfy the pre-requisites contemplated
under Section 354(3) CrPC in light of the dictum
of the court in Bachan Singh‟s Case” (supra).
13. In the majority decision of Bachan Singh Vs. State of Punjab
reported in (1980) 2 SCC 684, the Hon’ble Supreme Court has dealt
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with the mitigating circumstances which may assist the learned Trial
Judge in deciding the quantum of sentence. Para 206 of the said
decision is profitable for recollecting the observation of the Hon’ble
Supreme Court:-
“206. Dr. Chitale has suggested these mitigating
factors:
Mitigating circumstances:- In the exercise of its
discretion in the above cases, the court shall
take into account the following circumstances:-
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the accused is
young or old, he shall not be sentenced to death.
(3) The probability that the accused would not
commit criminal acts of violence as would
constitute a continuing threat to society.
(4) The probability that the accused can be
reformed and rehabilitated.
The State shall by evidence prove that the
accused does not satisfy the conditions (3) and
(4) above.
(5) That in the facts and circumstances of the
case the accused believed that he was morally
justified in committing the offence.
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(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed
that he was mentally defective and that the said
defect impaired his capacity to appreciate the
criminality of his conduct.”
14. In Manoj & Ors. Vs. State of Madhya Pradesh reported in
(2023) 2 SCC 353 the Hon’ble supreme Court has dealt with the
practical guidelines for assisting the Learned Trial Judges to consider
the mitigating circumstances where the Learned Trial Courts are
prone to inflict death sentence. Paras 248 to 250 are quoted herein
below for the purpose of understanding the present law of the land
which mandates that the learned Trial Courts should consider those
prerequisites before imposing death sentence upon any convict:-
“248. There is urgent need to ensure that
mitigating circumstances are considered at the
trial stage, to avoid slipping into a retributive
response to the brutality of the crime, as is
noticeably the situation in a majority of cases
reaching the appellate stage.
249. To do this, the trial court must elicit
information from the accused and the State,
both. The State, must–for an offence carrying
capital punishment at the appropriate stage,
produce material which is preferably collected
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beforehand, before the Sessions Court disclosingpsychiatric and psychological evaluation of the
accused. This will help establish proximity (in
terms of timeline), to the accused person’s frame
of mind (or mental illness, if any) at the time of
committing the crime and offer guidance on
mitigating factors (1), (5), (6) and (7) spelled out
in Bachan Singh. Even for the other factors of (3)
and (4) an onus placed squarely on the State-
conducting this form of psychiatric and
psychological evaluation close on the heels of
commission of the offence, will provide a
baseline for the appellate courts to use for
comparison i.e. to evaluate the progress of the
accused towards reformation, achieved during
the incarceration period.
250. Next, the State, must in a time-bound
manner, collect additional information pertaining
to the accused. An illustrative, but not
exhaustive list is as follows:
(a) Age
(b) Early family background (siblings, protection
of parents, any history of violence or neglect)
(c) Present family background (surviving family
members, whether married, has children, etc.)
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(d) Type and level of education
(e) Socio-economic background (including
conditions of poverty or deprivation, if any)
(f) Criminal antecedents (details of offence and
whether convicted, sentence served, if any)
(g) Income and the kind of employment (whether
none, or temporary or permanent, etc.);
(h) Other factors such as history of unstable
social behaviour, or mental or psychological
ailment(s), alienation of the individual (with
reasons, if any), etc.
This information should mandatorily be
available to the trial court, at the sentencing
stage. The accused too, should be given the
same opportunity to produce evidence in
rebuttal, towards establishing all mitigating
circumstances.”
15. From the impugned judgment it appears that the learned Trial
Judge at the time of sentencing the convict considered the following
judgments:- (1) Bachan Singh Vs. State of Punjab reported in
(1980) 2 SCC 684, Machhi Singh V. State of Punjab reported in
(1983) 3 SCC 470, (3) Ravji@ Ram Chandra V. State of Rajasthan
reported in (1996) 2 SCC 175, (4) Swamy Shradhananda V. State
of Karnataka reported in (2008) 13 SCC 767, (5) Santosh Kumar
Satishbhushan Bariyar V. State of Maharashtra reported in (2009)
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6 SCC 498, (6) Sangeet and another V. State of Haryana reported
in (2013) 2 SCC 452 and (7) Shankar Kisanrao Khade V. State of
Maharashtra reported in (2013) 5 SCC 546.
16. There is no discussion in respect of the judgment of Manoj &
Ors. (supra) in the four corners of the impugned judgment. There is
no whisper that steps were taken from the side of the Learned Trial
Judge to comply with the directions contained in the said judgments
reported in (2023) 2 SCC 353 in letter and spirit. In deciding the
quantum of sentence the learned Trial Judge did not feel it proper to
receive the relevant report/inputs as indicated in the said judgment
rather he relied upon his own personal assessment of the factors for
consideration in this regard. Therefore, we have no hesitation to say
that the guidelines as mentioned in the decision of Manoj & Ors.
(supra) were not followed and therefore the learned Trial Court passed
the order of sentence without eliciting relevant information from the
accused and the State as indicated in the paragraph 249 of the
aforesaid decision. The said direction is mandatorily to be followed by
the learned Trial Court at the sentencing stage and that being not
done, we have no hesitation to hold that the process of sentencing the
convict Baldeb Paul to suffer death sentence is based on an
inappropriate application of judicial mind and, therefore, such process
of sentencing cannot be allowed to stand. Moreover, there is no clear
observation in the judgment as to why life imprisonment will not be
an adequate punishment for Baladeb Paul.
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Chapter-II-[CRA(DB) 272 of 2025]
17. Having said so, let us see whether the conviction of the
appellant convict Baldeb Paul is sustainable in the eyes of law or not.
At the very outset it would be apposite to mention that while
convicting an accused, the learned Trial Court should not be guided
by his personal opinion or belief. The sacred duty upon the Learned
Trial Judge in a criminal case is to see whether the prosecution is able
to bring home charges against the accused beyond all sorts of
reasonable doubt. In deciding a case there may be personal feeling of
a concerned Judge that in all probabilities the accused is the actual
culprit but such personal belief has no place in the criminal
jurisprudence unless the guilt of such accused is proved by producing
reliable and convincing evidence to such an extent that the complicity
of the accused in committing the crime is incompatible with his plea
of innocence. In other words, the complicity or involvement of the
accused is to be proved by the prosecution in such a manner that
there cannot be a second view for his innocence. Therefore, the only
duty of the Learned Trial Court is to see whether the case against the
accused has been proved by the prosecution beyond all sorts of
reasonable doubt or not. If there are lacuna in upholding such solemn
principle, the learned Trial Court is duty bound to acquit the accused,
irrespective of its personal belief or opinion.
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18. Let us see how the evidence has been scanned by the Learned
Trial Judge. The record discloses that PW1 Tahera Begum, the wife of
the deceased, PW 3 Harun Ali Rashid, the elder brother of the
deceased were not present at the spot at the time of the incident and
they had come to know about the incident from one Kajol Ray being
PW 8. PW 2 Ashok Kumar Dey and PW4 Kanailal Dey were declared
hostile and in their examination in chief they did not confirm that the
convict Baladeb Pal fired the deceased. PW 5 did not say that it was
Baladeb Pal who shot at the deceased. PW 6 Sk. Sairaf Ali, PW 7
Samir Malik, PW8 Kajol Roy deposed that it was Baladeb who shot at
the deceased Naimuddin. PW9 Fotik Malik and PW10 Nausar Ali did
not say that Baladeb pal shot at Naimuddin. PW11 deposed that
Baladeb pal fired Naimuddin from his back. Therefore, although PW 6
Sk. Sairaf Ali, PW7 Samir Malik, PW8 Kajol Kr. Ray and PW11
Chaudhury Azar Ali deposed that they saw Baladeb Pal to open fire at
Naimuddin, PW1, PW2, PW3, PW4 and PW5 did not say that Baladeb
Pal opened fire on Naimuddin. In spite of such deposition the learned
Trial Judge has astonishingly made following observations under the
heading discussion on arguments:-“In the instant case, each and every
prosecution witnesses comprising from PW1 to PW11 clearly deposed
that they saw A1 (Baladeb Pal) and other accused persons with fired
arms and other offending weapons in their hands, at the time of
incident and such witnesses clearly deposed that A1 (Baladeb Pal) shot
the victim on his head and other accused persons were firing in the air
after A1 (Baladeb Pal) shot the victim” (emphasis added). Such
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observation goes to show that the learned Trial Judge did not apply
his mind since it is clear from the deposition of PW1 to PW5 and also
PW 9 and PW 10 that they did not say that they witnessed Baladeb
Pal to shoot the victim on his head.
19. It is also found that the Learned Trial Judge at the time of
scanning the evidence of PW4 has made the following observation in
the judgment as follows:-
“Thus, from the evidence of PW4, it is seen that
PW4 even though he initially admitted that he
was present at the spot with the victim but
intentionally refused to bring out true facts
before the Court for which he was declared
hostile by the prosecution and during cross-
examination by the prosecution, it is seen that
PW4 corroborated his evidence-in-chief during
his cross-examination and corroborated the fact
that at the time of firing by Al to victim, PW4
was present there and PW4 saw the incident
with his own eyes but did not depose the same
in his evidence-in-chief and it is settled that if a
witness is declared hostile, his evidence cannot
be ignored in its entirety (as discussed in
paragraph no. 44 of this judgment with referred
citation) and such evidence given during hostile
stage is not fatal to the prosecution and based
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upon such facts, the denial of several facts byPW4 during his cross-examination by the
prosecution at a hostile stage cannot be ignored
by the Court in toto and as such, evidence of
PW4 sustains while deposed during hostile
stage and as such, it can be safely concluded
that PW4 was present with the victim at the time
of incident when A1 shot victim and PW4 being
the retired teacher of the school was present
with the victim at the time of incident, who was
an eye-witness to the incident.
20. Now for better understanding the issue I would like to quote the
actual deposition of PW4 which was taken before the learned Trial
Judge on 16.01.2018 which is as follows:-
Chief examination of PW- 4 (Csw-4) namely
Kanailal Dey starts today on 16.01.2018
I am a resident of Bally under Goghat PS. I am a
retired teacher of high school. On 09.12.2011,
he was acquainted with Noimuddin since
deceased. On that day i.e 09.12.11 I went
Sheora High School and bazar of Shaura, on
reaching to the school one person namely
Noimuddin since deceased requested me to fill
up the nomination papers, out of his request I
was filling up the nomination papers. It was
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about 11.00 a.m. I was filling those nominationpapers on the ground of school on sitting there.
Suddenly, I heard a sound of firing and I found
that Noimuddin was lying on the ground out of
that firing. Noimuddin was sitting just beside to
me at that time. At such lying on the ground out
of firing of Noimuddin, I left that place. I did not
see who fired that. It was haatbar that is why
some persons who were also filing up
nomination papers and other person were
present there, I did not know them. I had no
talking with other persons on the spot.
I was not examined by the police out of such
incident. (witness declared hostile and
permitted to cross-examine) xxx by the
prosecution.
21. From the comparative study of the observation of the learned
Judge and the actual deposition of PW4 I find that nowhere in his
deposition the PW4 has stated that Baldeb Paul fired at Naimuddin.
There was no whisper in the said deposition that Baldeb Paul was also
present at the spot. In spite of such substantive piece of evidence, the
learned Trial Judge has made an observation to the effect “as such, it
can be safely concluded that PW4 was present with the victim at the
time of incident when a1 (Baladeb Pal) shot victim and PW4 being the
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retired teacher of the school was present with the victim at the time of
incident, who was an eye witness to the incident”., it appears that the
learned trial Judge has inserted many words stating that PW4 was
present when accused Baldeb Paul shot the victim. This cannot be
done by the learned Trial Judge even if such a witness is declared as
hostile. That part of the evidence of hostile witness can be considered
which he has deposed before the learned Trial Court during his
examination but the learned Trial Judge can neither infer from any
conclusion nor insert his findings by putting words in the mouth of
the said witness. In this regard the learned Trial Judge has misread
the relevant reported judgment which he indicated in the relevant
portion of his judgment.
22. The defence had raised the issue that although the FIR and the
materials on record suggested that all the persons accompanying the
deceased sustained injuries neither any medical report nor any other
evidence was brought on record to show that actually they had
sustained any injury. No incriminating article of such assault, such
as, Lathi, Tangi etc. was recovered and seized during the investigation.
The Learned Trial Judge has dealt with the said issue by giving his
personal assessment once again. In this regard, the relevant para in
the judgment is quoted herein below:-
“Ld. Advocate for the accused persons submitted that
most of the prosecution witnesses deposed that the
accused persons assaulted them but during evidence
there is no scrap of paper of any medical treatment of
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any of the injured witnesses and as such the evidenceof these witnesses cannot be taken to be correct. As
regards this submission, this Court does not agree with
such submission, as assault word, being used in
ordinary parlance by an ordinary person, differs from
the legal definition of assault, as usually assault does
not mean grievous injury to a person and in the instant
case, the prosecution witnesses deposed of being hit by
lathi, tangi etc. etc. which even if done, and if any one
sustains such assault, it would result in a body pain
etc. for which generally a person takes a medicine of a
pain killer medicine or antibiotic medicine, without
consulting any Doctor which practice is prevalent in the
common minds of each and every person residing in the
villages and even in urban locality.”
23. The above observations show that the Learned Judge has tried
to mitigate the palpable lacuna on the part of the investigating agency
in this regard.
24. The defence had also taken the plea that neither any arm nor
bullet was recovered from the place of occurrence which were used by
the accused persons other than Baladeb Paul, no attempt was taken
to seize any of the alleged arms from the possession of the accused
persons. If they opened fire in the air there must be some empty
cartridges in the field but not a single empty cartridge was recovered
and seized during the investigation. This plea of defence was not at all
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discussed by the Learned Judge in his judgment. There is no whisper
as to why such arms, ammunitions were not recovered. It is also
found that the arms alleged to have been used by the appellant
Baladeb Paul in shooting the deceased were not recovered.
Accordingly, no FSL report could be prepared. This vital omission,
discrepancy in the prosecution case was not dealt with by the Learned
Trial Judge in his judgement. He has discussed several judgments
stating that all those lacuna are minor discrepancies and such minor
discrepancies do not hit at the root of the prosecution case. But in our
view this lacuna on the part of the investigating agency is very serious
in nature. Not every kind of discrepancy may cost the prosecution
case, but when there were allegations that 50/60 persons came with
fire arms and opened fire in the air to frighten the nearby people, why
there should not be any seizure of such empty cartridges and fire
arms from the possession of the accused persons. Not a single firearm
was recovered from any of the convicts including the appellant
Baladeb Paul. It is true that initially Baladeb Paul absconded but that
does not mean that after he was brought to the course of Justice, the
Investigating Officer will remain idle. This serious issue was not taken
into account by the Learned Trial Judge in deciding the fate of the
case of the convicts/appellants.
25. As per the prosecution case, there are several eye witnesses
namely PW 6 Sk. Sairaf Ali, PW 7 Samir Malik, PW 8 Kajal Kumar Roy
and PW 11 Choudhury Azahar Ali, who deposed before the Court that
they saw Baladeb Paul open fire on Naimuddin. If that be so, let us
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peruse the evidence of those witnesses for the purpose of ascertaining
whether such evidence could be relied upon by the Learned Judge in
convicting the accused Baladeb Paul. PW 6 has stated that when they
were filling up the forms some miscreants namely Baladeb Paul,
Sahadeb Paul, Tapan Kha, Swpan Roy, Asit Ghosh (Uday), Santosh
Pandit, Akhtar Chowdhury, Asit Singha Roy, Gajan Paramanick,
Nakul Diger (Barun Diger), Sita Ram Paul, Tapan Chowdhury
(Chowdhury Kamrul Alam) suddenly came to the spot and attacked
them. At that time, Baladeb Paul shot Naimuddin at his left ear and
Naimuddin fell down on the ground. In his cross examination, he
stated Baladeb Paul shot Naimuddin from a close distance, that is just
behind him in a sitting position from the back side. Baladeb Paul shot
him by firing one time. Other miscreants also used their firearms on
firing in the air.
26. Although the above deposition of Sk. Sairaf Ali is very much
pertinent for the prosecution, it appears that none of the other
prosecution witnesses has deposed that Sk. Sairaf Ali was present
with Naimuddin at the spot on the date of occurrence. However,
several witnesses including PW 8 Kajol Kumar Roy have stated that
Sourav Ali, Samir Malik, Sk. Nausar Ali, Fatik Malik, Sk. Abdul Selim
was also with them in front of the school where the incident occurred.
The PW 10 Sk. Nausar Ali and PW 11 Chaudhury Azahar Ali had
deposed that Kajol Kumar Roy, Sourav Mondal, Naimuddin were
writing something on the eastern side of the school on the fateful day.
It appears from the record that none of the said witnesses have stated
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before this court that Sk. Sairaf Ali was present with the deceased
along with others on the fateful day and time. The said witnesses
namely PW 8 Kajol Kumar Roy, PW 10 Sk. Nausar Ali, PW 11
Chowdhury Ajahar Ali were examined on 9th August, 2018 when they
disclosed the name of one Sourav Mondal as one of the companions of
the deceased Sk. Naimuddin on the relevant day. It appears from the
record although Sk. Sairaf Ali was examined on 23rd March,2018 and
was cross-examined on 16th November, 2018 he never disclosed that
he was also known as Sourav Mondal. It appears from the record that
on 16.11.2018 after cross-examination of Sk. Sairaf Ali was over he
was asked by the Court as to whether he was also known as Sourav
Mondal or not since the learned Public Prosecutor had given his name
in the witness attendance sheet as Sourav Mondal. The court recorded
that on being asked the witness Sk. Sairaf Ali stated on dock that he
was also known as Sourav and Sourav Mondal in the locality. In his
cross-examination thereafter he stated that previously he never stated
that he was known as Sourav Mondal. It appears that such alleged
clarification of Sk. Sairaf Ali on 16th November, 2018 took place after
the deposition of PW 8, PW 10 and PW 11 on 9th August, 2018 was
over and such clarification was propelled by the Learned Public
Prosecutor in Trial Court when he named in the hazira slip of the
witness on 16.11.2018 as Sourav Mondal instead of Sk. Sairaf Ali.
Nowhere in the charge sheet or any other material it is shown that
Sourav Mondal and Sk. Sairaf Ali was one and the same person who
witnessed the incident. However, after the evidence of PW 8, PW 10
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and PW 11 disclosed the presence of one Sourav Mondal, PW 6 Sk.
Sairaf Ali claimed that he was that Sourav Mondal which was
indicated in the deposition of PW 8, PW 10 and PW 11. As the identity
of Sk. Sairaf Ali is in dispute, it is very difficult to rely upon his
deposition, since PW 11 had already mentioned that Sourav Mondal
had affiliation with one of the political parties to which the deceased
belonged.
27. PW 8 Kajol Kumar Roy had deposed that on 09.12.2011 he
along with Naimuddin went to the concerned school for the purpose of
filing nomination papers. Thereafter when they were engaged in filling
the same, 50 persons surrounded them and started assaulting them.
He has also stated that Baladeb Paul fired Naimuddin at his left side
of the neck. Apart from him there was Sk. Abdul Safik, Nakul Diger,
Saheb Pal, Sahadeb Pal, Tapas Kha, Swapan Roy, Sitaram Pal, Asit
Singha, Santosh Pandit, Chaudhury Mehebub Hossian, Chowdury
Kamrul Alam @ Topa, Chowdhury Aktharul Haque @ Akthar, Barun
Diger, Asit Ghosh were also carrying fire arms in their hands.
28. Sk. Sairaf Ali being PW 6 has stated during his cross-
examination that Baladeb Paul, Sahadeb Pal, Nakul Diger, Tapas Kha,
Santosh Pandit were carrying revolvers and the other miscreants were
with weapons like lathi, rod, tangi etc. Therefore, there is a serious
discrepancy between the version of PW 6 and PW 8 in this regard. The
presence of PW 6 on the spot at the relevant time is doubtful.
29. PW 8 has further stated that Sourav Ali, Samir Malik, Sk.
Nausar Ali, Fatik Malik, Abdul Selim were also with them. In his
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cross-examination he stated that the miscreants also assaulted them.
Now whether the deposition of PW 8 can be relied upon or not, we
have to scrutinise the Inquest Report under Section 174 Cr.P.C. PW 8
had also signed the said Inquest Report. Only signatures of the
witnesses on the inquest report were marked as Exhibits. PW 19,
Inspector Prashanta Chatterjee, the second Investigating Officer, has
stated in his cross-examination that none of the witnesses in the
Inquest Report named the assailants of the deceased. Rather, the said
witnesses reported to the officer conducting the Inquest on the dead
body that unknown miscreants made the gunshot. It is not clear that
if PW 8 knew that Baladeb Paul fired Naimuddin from the back side,
what prevented him from narrating the same before the concerned
officer conducting inquest on the body of the deceased on 09.12.2011
at 13.30 hours. It is also found that the another witness being PW 3
who derived his knowledge that Naimuddin was fired at by Baladeb
Paul, from PW8 Kajol Kumar Roy, did not state anything regarding the
involvement of the convict Baladeb Paul as the sole assailant. The
Learned Trial Judge did not deal with this vital issue in his judgment.
PW 8 has denied the suggestion in his cross-examination that he did
not disclose to the police at the time of inquest that unknown
miscreants murdered Naimuddin. In other words, the prosecution
wants to show that Naimuddin had informed the officer holding the
inquest about the names of the assailant but that was not recorded by
the inquest officer. If that be so, the inquest officer namely, Satya
Barik should have been examined on that issue. But the record shows
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that Satya Barik was not examined and the inquest report was not
admitted in evidence and marked as exhibit. Apart from the
signatures of the witnesses appearing in the said report, nothing in
the said report was admitted in evidence. The instant issue was also
not examined by the Learned Trial Judge in its proper perspective.
The prosecution has, in fact, withheld the contents of the inquest
report to be admissible in the eye of law.
30. The Learned Trial Judge should have drawn adverse inference
against the prosecution for withholding the contents of the Inquest
Report to be admissible in evidence. PW 7 Samir Malik has alleged
that he was present at the time of incident and he saw Baladev Pal
shoot Naimuddin from his front side at his left ear. The presence of
Samir Malik was not confirmed by the deposition of PW 10, PW 11
and PW 6. There is no material on record apart from the deposition of
PW 8 that Samir Malik was present at the time of incident. PW 11 has
stated that on the relevant date he found Baladeb Paul shot
Naimuddin at the back side of his head and thereafter Naimuddin fell
down on the ground. In his cross-examination he has stated that after
the demise of Naimuddin a big rally/prossession took place at the
locality and even in that rally the higher leaders of TMC party visited
the place and participated at that rally. After the said rally there was a
discussion that the persons who killed Naimuddin shall be punished
in accordance with law and how it should be effected. He further
stated in his cross-examination that in that meeting it was decided
that PW 11 will depose before the Court which he stated in his
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examination-in-chief. This statement in the cross-examination does
not show that PW 11 Chowdhury Azahar Ali was an independent
witness. He is an active member of the political party to which the PW
7, PW 8, PW 6 belonged. Therefore, as the matter involved murder of a
political personnel, the deposition of other political personnel should
be taken into consideration with much caution and circumspection.
But the Learned Trial Judge has failed to consider that no
independent witness supported the prosecution case and the Learned
Trial Judge has pronounced his judgment on the basis of the evidence
of such political personnel, who cannot be said to be independent
witnesses by any stretch of imagination.
31. At page nos. 6 and 7 of the judgment the learned Trial Judge
has mentioned in a tabular form the list of exhibits from the side of
prosecution and they were as follows:-
Sl. No. Exhibit Number Description
1. Exhibit 1 Written complaint.
2. Exhibit 1/1 Endorsement on written complaint
with signature and seal of PW 18.
3. Exhibit 2 Seizure List dated 10.07.2023.
4. Exhibit 2(a) Signature of PW 1 on seizure list dated
10.07.2013.
5. Exhibit 2/2 Signature of PW 16 on seizure list
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dated 10.07.2013.
6. Exhibit 2/3 Signature of PW 17 on seizure list
dated 10.07.2013.
7. Exhibit 3/a Signature of PW 3 on inquest report.
8. Exhibit 3/b Signature of PW 8 on inquest report.
9. Exhibit 4/a to Signatures of PW 3 on statement u/s
Exhibit 4/d 164 Cr.P.C.
10. Exhibit 5/a to Signatures of PW 8 on statement u/s
Exhibit 5/d 164 Cr.P.C.
11. Exhibit 6 Post Mortem Report of the victim.
12. Exhibit 6/1 Signature of PW 14 on Post Mortem
Report.
13. Exhibit 6/2 Signature of PW 15 on Post Mortem
Report.
14. Exhibit 7 Carbon process of Dead Body Challan.
15. Exhibit 8 F.S.L report.
16. Exhibit 9 Formal FIR.
17. Exhibit 10 Seizure list dated 09.12.2011.
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18. Exhibit 11 and 11/1 Rough Sketch Map of P.O with Index.
19. Exhibit 12 Seizure list dates 09.12.2011 prepared
by Satya Barik.
20. Exhibit 13 Carbon copy of forwarding letters to
FSL, Kolkata of bullet head & other
items, comprising of 4 pages.
32. It appears that from page no. 52 of the judgment the Learned
Trial Judge has mentioned as follows:-
“Exhibit 3 is the Inquest Report which was held
on the date of incident at 13.30 hrs. which
inquest was held immediately after filing of the
complaint.”
33. It appears that there is no Exhibit 3 in the list of exhibits of
prosecution. Although the signature of PW 3 and the signature of PW
8 on the Inquest Report have been marked as Exhibits 3a and 3b
respectively and although the contents of the said Inquest Report were
not admitted in evidence, the learned Trial Judge has proceeded to
dispose of the case as if the Inquest Report has been marked as
Exhibit 3. We have already mentioned that the Officer who conducted
the Inquest Report namely Satya Barik was not examined by the
prosecution. If the contents of the inquest report were not admitted in
evidence how the Learned Trial Judge can record that the Inquest
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Report has been marked as Exhibit 3 and the same was held
immediately after filing of the complaint.
34. Similar is the situation in case of the statement of PW 3
recorded under Section 164 Cr.P.C. Although the Magistrate was not
called as a witness and his deposition was not recorded, the learned
Trial Judge proceeded to dispose of the matter holding that the
statement under Section 164 Cr.P.C. has been marked as Exhibit 4.
From the list of Exhibits of the prosecution, it appears that there is no
such Exhibit 4 mentioned in the said list at page nos. 6 and 7. Only
the signatures of PW 3 on the statement under Section 164 Cr.P.C.
was marked as Exhibit 4a to Exhibit 4d. It is also found that although
the concerned Magistrate was not examined before the learned Trial
Judge at the time of trial, the statement of PW 8 before the learned
Magistrate recorded under Section 164 Cr.P.C. was shown in Page No.
52 of the judgment as Exhibit 5 but actually there is no Exhibit 5 in
the list of exhibits of prosecution as mentioned above. Only the
signatures of PW 8 on the statement under section 164 Cr.P.C. were
marked as Exhibit 5a to Exhibit 5d. Inspite of the fact that the two
statements of PW 3 and PW 8 recorded under Section 164 Cr.P.C.
were not proved by producing the concerned Judicial Magistrate or
Magistrates before the learned Trial Court, and the contents of the
said statements of the witnesses under Section 164 Cr.P.C., were not
admitted in accordance with law, the Learned Trial Judge has
proceeded to hold that PW 3 and PW 8 narrated the entire incident to
the learned Magistrate and it is seen that Exhibit 4 and Exhibit 5 (not
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mentioned in the Exhibit list) corroborated the evidence of such
witness in all respects. We have gone through the original Trial Court
record and examined the same and found that there is no. Ext. 3, Ext.
4, Ext. 5 as depicted by the learned Trial Judge. This is a clear non-
application of mind and dereliction of duties entrusted upon a
Judicial Officer.
35. In view of the above discussion, it is found that there are several
loopholes in the prosecution case and they are as follows:-
i) No independent witness supported the prosecution case; the
prosecution has relied upon some interested witnesses in
convicting the accused Baldeb Pal.
ii) No recovery of the weapon was done by the investigating officer.
iii) The gun/revolver which the convict Baldeb Pal was alleged to have
used at the time of commission of offence was neither seized nor
sent to forensic laboratory for analysis to pin point that the said
convict made the gunshot upon the victim Naimuddin.
iv) The contents of the inquest report were withheld by the prosecution
and were not made admissible in the evidence.
v) The doctor who recovered the bullet from the body of the deceased
had deposed that the bullet shown to him during trial was not
recovered from the body of the victim.
vi) The FIR was sent to the concerned police station more than three
hours after the incident via a relative of the defacto complainant.
vii) PW19, the second investigating officer has stated that none of the
witnesses in the inquest report name Baladeb Pal as the assailant
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of the deceased. It is not clear if the witnesses to the said inquestreport knew that Baladeb Pal fired Naimuddin from the back side,
which prevented them from narrating the same before the
concerned officer conducting the inquest report.
viii) No injury report for the assault upon the witnesses apart from the
deceased and no weapon in that regard was seized by the
investigating officer.
ix) The GDs mentioned in the formal FIR are not brought on record to
lend support to the prosecution case,
x) Four local witnesses declined to support the prosecution case,
xi) No ballistic report was received during the trial.
xii) The contents of statements under Section 164 Cr.P.C were not
admitted in evidence but the learned Judge relied upon its
unexhibited contents.
xiii) Non-production of Judicial Magistrates who recorded the
statements under Section 164 Cr.P.C.
36. In view of such deficiencies in the prosecution case, we are
constrained to hold that conviction upon the death row convict
Baladeb Paul is not at all sustainable. The prosecution has relied
upon the evidence of interested witnesses only and there is no
corroborative piece of evidence to support such deposition of the said
witnesses. In view of the above, the order of sentence of death as
imposed upon Baladeb Paul is hereby not confirmed and the order of
death sentence in connection with the case being ST Case No. 1(7)
2016 /S.C. Case No. 95 of 2015 (CIS – 03 of 2016) is hereby set
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aside. Hence, Death Reference being No. 08 of 2025 fails. Moreover,
the conviction order passed in the said judgment is hereby also set
aside. CRA (DB) 272 of 2025 filed by Baldeb Paul against the
judgment of conviction and sentence is hereby allowed and the
impugned judgment convicting appellant Baldeb Paul is hereby set
aside. The appellant Baldeb Paul be released at once if not wanted in
any other case.
37. Although the learned Public Prosecutor submitted that learned
Additional District and Sessions Judge, who authored the impugned
judgment requires training at Judicial Academy, we think that the
Court room is the best place for acquiring knowledge and guidance for
a Judicial Officer. However, in view of the fact that the learned
Additional District and Sessions Judge who passed the impugned
judgment of conviction dated 23.06.2025 and order of sentence dated
24.06.2025 in connection with the S.T. Case No. 01 (07) 2016 (S.C.
Case No. 95 of 2015) of the Learned Court of Additional District and
Sessions Judge, 1st Court, Arambagh at Hooghly, had committed some
basic and elementary mistakes, it would be appropriate to place a copy
of the instant judgment along with a copy of the impugned judgment
before the Hon’ble Chief Justice of High Court at Calcutta for deciding
whether or not corrective measures are required to be taken for
guidance of the learned Additional District and Sessions Judge as
aforesaid.
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38. Let a copy of this judgment be sent to the concerned Additional
District and Sessions Judge wherever he is posted now, in a sealed
cover for his guidance. The learned Registrar General, High Court at
Calcutta is requested to send a copy of the judgment to the concerned
learned Additional District and Sessions Judge in a confidential sealed
cover immediately.
39. Let a copy of this judgment along with the Trial Court Records be sent
to the Learned Court below.
40. Urgent photostat certified copies of this Judgment, if applied for, be
supplied to the parties on compliance of all necessary formalities.
I agree.
(APURBA SINHA RAY, J.) (ARIJIT BANERJEE, J.)
Arijit Banerjee, J. :-
1. I have had the advantage of reading the detailed judgement of my
esteemed brother. I am in complete agreement with my brother that
this appeal deserves to be allowed and the death reference needs to be
rejected.
2. It is elementary that the prosecution is required to establish the
charges brought against an accused person by adducing cogent
evidence. There is no space for suppositions, speculations or
conjectures. It is the duty of the Court trying an accused for a
criminal offence to ensure that a conviction is ordered only when the
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Court is satisfied beyond reasonable doubt about the guilt of theaccused on the basis of documentary and oral evidence, admissible in
law. The graver the charge, the greater the caution that the Court
must exercise obviously because the consequences by way of
punishment become harsher with the gravity of the charge.
3. I am disappointed to note that in the present case, the learned Trial
Court has failed to discharge its duty judiciously. There are
inconsistencies galore in the evidence recorded by the various
prosecution witnesses and errors legion in the impugned judgement
as noted in the leading judgment of my learned brother. Statements
recorded under Section 164 Cr. P.C, before learned Magistrates have
been admitted in evidence without the concerned Magistrates being
examined. Although the prosecution witnesses say that several of the
accused persons were carrying firearms and opened fire in the air to
frighten the people in the immediate vicinity, there is no seizure of
empty cartridges or the like from the place of occurrence. The
offending firearm with which the appellant allegedly killed the victim,
was never seized. The forensic doctor, when shown the bullet allegedly
recovered from the body of the victim, deposed that the bullet was not
the same as the one he had extracted from the dead body of the
victim. Although the prosecution witnesses talk of several people being
injured by the accused persons with various kinds of weapons like
stick, knife, tongi etc., there is no seizure of any such offending
weapon. There is no injury report in respect of such allegedly injured
victims. There is confusion about the exact place of occurrence. The
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case indisputably has a political overtone and all the witnesses onwhose depositions the learned Trial Judge relied, are interested
witnesses.
4. In a nutshell, there are huge gaps and gaping holes in the
prosecution case, as well as in the judgment and order under appeal.
My learned brother, towards the end of the judgment that he has
authored, has tabulated the more glaring defects in the impugned
judgment and order and to avoid prolixity I refrain from repeating the
same. In my considered view, the learned Trial Judge has erred to a
considerable extent in appreciating the facts and circumstances of the
case and in assimilating the evidence on record. I have no doubt in my
mind that this is not a case where the prosecution can be said to have
brought home the charges against the appellant, beyond reasonable
doubt.
5. Even assuming that the learned Judge rightly convicted the
appellant, imposition of death penalty on the appellant was wholly
unwarranted. One may note that Section 354(3) of the Code of
Criminal Procedure, 1973, provides as follows:-
“354 (3)- When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence
of death, the special reasons for such sentence.”
6. The learned Trial Judge has not recorded the special reasons for
imposing death sentence. There is no discussion as to why
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imprisonment for life would not be adequate punishment in the facts
and circumstances of the case. It is not stated as to why the alleged
offence shocked the conscience of the learned Judge to such an extent
that he found nothing short of the ultimate punishment of death to be
commensurate with the crime. This is apart from the fact that the
learned Judge was completely oblivious of the mandatory directions of
the Hon’ble Supreme Court in paragraph 250 of the judgment in the
case of Manoj v. State of M.P., (Supra).
7. Thus, even if I had upheld the conviction of the appellant, I would
have commuted the death sentence in view of non-compliance with
the directions in Manoj’s case, (Supra), and also because I have no
doubt in my mind that this is not one of those rarest of rare cases
which calls for imposition of capital punishment. However, this is of
academic interest, since I am in agreement with my learned brother
that the appellant’s conviction cannot be sustained and the appeal
should be allowed.
I agree.
(APURBA SINHA RAY, J.) (ARIJIT BANERJEE, J.)
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