Calcutta High Court (Appellete Side)
Anarul Sk & Ors vs The State Of West Bengal on 10 February, 2026
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Rajasekhar Mantha
And
The Hon'ble Justice Ajay Kumar Gupta
CRA 42 of 2018
Anarul Sk & Ors.
Versus
The State of West Bengal
For the Appellants : Mr. Sekhar Kumar Basu, Senior Advocate
Mr. Avishek Sinha
Ms. Eshita Dutta
Ms. Madhusree Banerjee
For the State : Mr. Rudradipta Nandy
Ms. Rajashree Tah
Hearing concluded on : 10th February, 2026
Judgment on : 10th February, 2026
Rajasekhar Mantha, J.:
1. The subject appeal is directed against judgement of conviction
dated 16.11.2017 and order of sentence 18.11.2017 passed by the
Additional Sessions Judge, Fast Track Court, Berhampore, Murshidabad
in Sessions Trial No.2(7)/2016 arising out of the Sessions Serial No.287
of 2001 (483 of 2014).
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2. The appellants were convicted under Sections 302 read with Sec.
34, Sec. 326 read with Sec. 34, and Sec. 449 read with Sec. 34 of the
Indian Penal Code.
3. Under sections 302/34 of the IPC, the appellants were sentenced
to suffer rigorous imprisonment for life and to pay a fine of Rs.25,000/-
each. In default thereof, the appellants were directed to suffer simple
imprisonment for another two years. Under sections 326/34 of the IPC,
the appellants were sentenced to suffer rigorous imprisonment for
10(ten) years and to pay a fine of Rs.10,000/- each. In default theref, to
suffer simple imprisonment for another two years each.
4. Under Sections 449/34 of the IPC, the appellants were sentenced
to rigorous imprisonment for ten years and a fine of Rs.10,000/- each.
In default thereof, to suffer simple imprisonment for another two years
each for the offence punishable. All the sentences were run concurrently.
THE PROSECUTION CASE, THE EVIDENCE ON RECORD, AND THE
ANALYSIS OF THIS COURT:-
5. On 13th March, 1996, the victims, Sujauddin and Salam went to
the house of Jamal Sk to eat papaya. Jamal Sk’s wife is stated to have
offered and cut a papaya to them. At that relevant point of time, the
appellants are stated to have entered into the house of Jamal Sk and
assaulted the deceased victim/Sujauddin and injured victim PW-
7/Salam Sk, with sticks and sharp cutting agricultural implements.
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6. The wife of Sujauddin (PW-6) and his mother-in-law are stated to
have intervened to stop the appellants from assaulting the said victim.
The appellants are stated stated have assaulted the said mother in law
on the forehead with a sharp cutting weapon.
7. On a hue and cry being raised by PW-6/Nilufa Bewa, wife of the
deceased/Sujauddin, the local villagers assembled thereat. They took
the Sujauddin and Salam first to Islampur Hospital and then to
Berhampore Hospital. Sujauddin was later shifted to PG hospital at
Kolkata, where he died 28 days after the incident. The other injured
victim, PW-7/Salam Sk. recovered after 18 days.
8. This Court finds several loopholes in the prosecution case. The FIR
was registered by Doulatabad Police Station being No.20/96 on the date
of occurrence i.e. 13th March, 1996. The said FIR was however sent to
the Magistrate for information on 25th March, 1996. The second
investigating officer/PW-9 or the prosecution has not been able to
explain the delay. This is is the first major lapse in the prosecution case.
9. The delay in forwarding the information about the registration of
an FIR to the Magistrate creates doubt against the prosecution case. The
consequences of the said delay has to be considered in light of the eye
witness account of the prosecution witnesses. The said delay creates a
doubt that the complaint and the FIR may have been filed and registered
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belatedly and predated. In Ombir Singh v. State of U.P., reported in
(2020) 6 SCC 378, it was held as follows:-
4. There was undoubtedly a delay in compliance with Section 157 of
the Code, as the FIR was received in the office of the Chief Judicial
Magistrate with a delay of 11 days. Effect of delay in compliance with
Section 157 of the Code and its legal impact on the trial has been
examined by this Court in Jafel Biswas v. State of W.B. [Jafel Biswas
v. State of W.B., (2019) 12 SCC 560 : (2019) 4 SCC (Cri) 455] after
referring to the earlier case laws, to elucidate as follows : (SCC pp.
565-67, paras 18-21)
“28. It is no doubt true that one of the external checks against
ante-dating or ante-timing an FIR is the time of its dispatch to
the Magistrate or its receipt by the Magistrate. The dispatch of
a copy of the FIR “forthwith” ensures that there is no
manipulation or interpolation in the FIR. [Sudarshan v. State of
Maharashtra, (2014) 12 SCC 312 : (2014) 5 SCC (Cri) 94] If the
prosecution is asked to give an explanation for the delay in the
dispatch of a copy of the FIR, it ought to do so. [Meharaj Singh v.
State of U.P., (1994) 5 SCC 188 : 1994 SCC (Cri) 1391]…
5. Therefore, delay in compliance with Section 157 of the Code
cannot, in itself, be a good ground to acquit the appellant. Albeit,
this fact has to be considered when we examine the credibility
of the version of the eyewitnesses; in this case, the testimonies of
Dinesh Singh (PW 1) and Mukesh Singh (PW 2). We must also keep in
mind that there were questions raised by the complainant and the
family members of the deceased as to the manner in which the
investigation was carried by the first investigating officer and his
team, and therefore the investigation was subsequently transferred to
the Crime Branch–Crime Investigation Department (“CB-CID”, for
short) on 1-8-1999.
10. The next lapse noticed by this Court is the curious and unexplained
delay of nearly six months in examining any of the witnesses by the
investigating officer. Therefore, there is a nexus between the delay in
forwarding the information about the registration of the FIR to the
magistrate and the belated examination of the prosecution witnesses by
the police.
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11. Thus, it cannot be ruled out that the FIR was not lodged on the date
appearing from the copy of the FIR. The said delay therefore is fatal to
the prosecution case in view of the decision in Shahid Khan v. State
of Rajasthan, reported in (2016) 4 SCC 96, which held as follows
20. The statements of PW 25 Mirza Majid Beg and PW 24
Mohamed Shakir were recorded after 3 days of the
occurrence. No explanation is forthcoming as to why they
were not examined for 3 days. It is also not known as to how
the police came to know that these witnesses saw the
occurrence. The delay in recording the statements casts a
serious doubt about their being eyewitnesses to the
occurrence. It may suggest that the investigating officer
was deliberately marking time with a view to decide about
the shape to be given to the case and the eyewitnesses to be
introduced.
Emphasis Applied
12. The first investigating officer died in course of investigation. The initial
charge was framed on 12th July, 2004 under Sections 304, 325, 326 of
the IPC. However, about 13 years after the initial charge was framed,
Section 302 and 449 of the IPC were added in the amended charge, by
the Trial judge.
13. This Court is surprised as to why section 302 of the IPC was not added
at the very inception and the Trial Judge chose to frame additional
charges under Sections 302 and 449 about 13 years after initial framing
of charge.
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14. The framing of a charge against the accused by the Court below has a
substantial impact on the liberty of the accused. In this regard, Section
221 of the CrPC prescribes that when there is a doubt as to which
specific charge should be framed against the accused out of the many
charges arising from the record, the trial Court should frame all the
charges against the accused. The same puts the accused on notice as to
what he is facing and what defense to advance. In State of Karnataka –
Vs- L. Muniswamy, reported in (1977) 2 SCC 699, it was held as
follows:
“The order framing a charge affects a person’s liberty
substantially and therefore it is the duty of the court to consider
judicially whether the material warrants the framing of the
charge. It cannot blindly accept the decision of the prosecution that
the accused be asked to face a trial. It was held by this Court, while
considering the true scope of Section 203 of the old Code that the
Magistrate was not bound to accept the result of an enquiry or
investigation and that he must apply his judicial mind to the material
on which he had to form his judgment…
Emphasis applied
15. In the present case, the trial Court ought to have included Section 302
at the first instance if it had any doubt as regards the charges to be
framed. Omitting to do so has violated Section 221 of the CRPC.
16. An omission by the Court below to charge an accused for a specific
offence can be later argued to have itself caused prejudice to the accused.
Whereas, when a charge is framed though not called for, the accused
cannot later argue that he was not informed about the charge. This
indicates the necessity for the charging Court to include charges at a one
go.
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17. In the present case, when the charges were framed for the first time in
the year 2004, by the trial Court the victim had already died 8 years
earlier. The Trial Court had no option but to frame the charge of Section
302 of the IPC against the appellants. The framing of the said charge
under Sec. 302 after 13 years has clearly prejudiced the appellants. The
appellants were clearly taken by surprise. This also throws up serious
questions on the investigation and the materials placed before the Trial
Court in the charge-sheet by the prosecution and the police.
18. Initially, when the charge was framed in 2004 the place of the
occurrence of the crime was not mentioned. Therefore, from the very
inception, it was not clear to the Court as to where the crime had taken
place. This Court notes from the case put forth by the prosecution during
the cross examination of PW-5/Latifa Bibi, (declared hostile by the
prosecution) that the place of occurrence may be the house of PW-
1/Rejaul Haque. Interestingly she was the wife of the deceased victim
Sujauddin. She turned hostile despite being a star witness for the
prosecution.
19. However, all other the prosecution witnesses have stated that the place
of occurrence of the crime was the house of Jamal Sk. The prosecution
therefore has been unable to prove the very foundation of the crime alleged
against the appellants. This is another serious loophole in the prosecution
case.
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20. This Court further finds that the deceased/victim was semi-conscious
or possibly conscious from the date of the incident until his actual demise
i.e. 28 days thereafter. It is surprising as to why the IO did not record any
statement of victim Sujauddin, nor did the deceased or injured victim did
not make any statement to the police as regards who had assaulted them.
Even the version of the the injured witness PW-7 was recorded 7 months
after the incident. No statement of the victim was recorded before the
Magistrate under Section 164 of the CrPC.\
21. The deceased victim was thus a material witness and not recording his
statement will lead to drawing an adverse inference against the
prosecution case. In Takhaji Hiraji v. Thakore Kubersing Chamansing,
reported in (2001) 6 SCC 145, it was held as follows:-
“19……It is true that if a material witness, who would unfold the
genesis of the incident or an essential part of the prosecution
case, not convincingly brought to fore otherwise, or where there is
a gap or infirmity in the prosecution case which could have been
supplied or made good by examining a witness who though
available is not examined, the prosecution case can be termed as
suffering from a deficiency and withholding of such a material
witness would oblige the court to draw an adverse inference
against the prosecution by holding that if the witness would
have been examined it would not have supported the
prosecution case.
Emphasis applied
22. Exhibit 2 and 3 are the bed head ticket and the injury report
respectively, of the deceased/victim at Berhampore hospital. While the bed
head tick indicates the name of deceased Sujauddin, the injury report does
not indicate any name.
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23. The injury report also indicates that the patient was semiconscious. The
history of how the patient sustained injuries in question is not even
mentioned in the exhibit 2 or 3. This is extremely unusual as in every case
of unnatural injury suffered by a victim, the hospital invariably is required
to record the history of the injures and the circumstances under which
they were sustained by the victim. The Trial Judge appears to have failed
to note the same.
24. The injury report was prepared by PW 10, the treating doctor. He has
deposed before the Court the name of the deceased victim. Thus, at time of
preparing the said injury report of the deceased victim, PW 10 would have
naturally mentioned the name of deceased. Thus, it further highly unusual
that the name of the victim was not mentioned in his injury report by PW
10.
25. PW 10 has further deposed that he was unable to ascertain the nature of
the weapons used to inflict the said injuries on the victims. Thus, the
medical evidence as regards the nature of weapons used to inflict the said
injuries has been inconclusive. As a result, the non-recovery of the
offending weapons assumes great significance. Thus, in the present case,
the appellants have not been linked with the injuries inflicted on the
victims.
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26. The eye-witness account of the PWs therefore cannot be relied on in view
of that there is not evidence to suggest that the victims were at all injured
by the appellants. There has been an inexplicable inconsistency between
the medical evidence and the eye witness account of the injuries alleged to
have been inflicted on the victim.
27. The star witness on the part of the prosecution was PW-7/Salam Sk.,
who was injured along with the deceased victim in the alleged assault by
the appellants. The version of PW-7/Salam Sk. is not clearly supported by
PW-3/Jyotsna Khatoon, (sister of the deceased) or PW-6/Nilufa Bewa,(wife
of the deceased), who are stated to have been present when the incident is
alleged to have occurred. In Khema v. State of U.P., (2023) 10 SCC 451,
it was held as follows:-
31…. Though, Inder (PW 2) is an injured eyewitness, there are
serious discrepancies and inconsistencies with regard to time of
the injuries sustained and time at which he was medically
examined. Dr Anoop Kumar (PW 6), in his evidence, has
changed his stance on several occasions. His testimony is totally
contrary to that of Omveer (PW 1) and Inder (PW 2). As held by
us, it will not be safe to base the conviction on the sole
testimony of Inder (PW 2) though he is an injured witness.
The corroboration sought by the prosecution with regard to
alleged recoveries of the weapons used in the crime is also
not free from doubt.
Emphasis Applied
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28. There are several contradictions in the evidence of PW-3/Jyotsna
Khatoon (Bibi). As an injured witness the prosecution ought to have
recorded the statement of PW-7/Salam Sk. under Section 164 of the
Cr.P.C., which has not been done.
29. PW-9, the second investigating officer, who ought to have referred to the
case diary where the statements under Section 161 of the Cr.P.C. of the
either witnesses must have been recorded by the first investigating officer
(who died before trial). The prosecution has not been able to bring out
clearly as to why the vital evidence of PW-7/Salam Sk. was recorded
nearly seven months after the incident.
30. While PW-3/Jyotshna Khatoon (Bibi), sister of the victim/ Sujauddin
has deposed that her mother was also present at the place and time of
occurrence and was allegedly injured. Such mother was never brought as
a witness by the prosecution. The evidence of the said mother could have
lent more credence to the evidence of PW-7/Salam Sk. Thus, a material
witness has been withheld by the prosecution.
31. What is equally curious is that several villagers including a local doctor
called Samser had arrived at the place of occurrence immediately after
the incident and had taken PW-7/Salam Sk and the deceased victim to
Islampur Hospital and later to Berhampore hospital. None of them were
examined by the prosecution as witnesses.
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32. Having regard to the aforesaid serious discrepancies in the evidence on
record, this Court is of the view that the evidence of PW-7/Salam Sk.
could not be taken as sacrosanct by the Trial Judge.
33. Learned counsel for the State would argue that the Court must look
into the statements recorded of the witnesses under Section 161 of the
Cr.P.C. in the local vernacular since there are discrepancies between the
translated versions of the documents of the paper book and the originals.
34. It is now well-settled that statements under Section 161 of the Cr.P.C.
cannot be considered even by the Trial Court much less an Appellate
Court since a statement under Section 161, CRPC, is for contradiction
not corroboration.
35. Learned counsel for the State has not pointed out that the statements
under Section 161 CrPC contain explanations as regards the delay in the
examination of the said witnesses. In fact, the said explanation ought to
have flown from the side of the Investigating Officer. He has however
been silent in that regard.
36. As already discussed above the initial charges were framed on 12 th
July, 2004 and the amended charges were farmed about 13 years
thereafter on 15th December, 2017 and the Trial commenced after 8
years of the incident and continued till 22 years thereafter. The
appellants were in fact convicted under the amended charges.
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37. A trial continuing for a prolonged period of over 22 years after the
incident and a conviction resulting thereunder can by itself be
characterized a miscarriage of justice. In SOVARAN SINGH PRAJAPATI
v. THE STATE OF UTTAR PRADESH reported in 2025 INSC 225, it
was held as follows:-
10.6 From a studied analysis of the above decisions, the following
principles as to the meaning and import of fair trial, can be
illustratively deduced :
(1) Fair and Just investigation is the starting point of the fair trial
process.
(3) Process of investigation and trial must be completed with
promptitude.
(8) Unfair prolongation of trial is an affront to the ideal of fair
trial.
38. Having regard to the above and having very carefully considered the
objections raised by the State through Ms. Z.N. Khan, learned advocate for
the State, this Court is of the view that the impugned judgement and/or
order of conviction cannot be sustained. The same is set aside.
39. It is been submitted that the appellant No.2/Ershad Sk has died on 30th
April, 2004. Appellant No.5/Babar Ali @ Mofikul Sk @ Babu has been found
to be a juvenile in course of and inquiry conducted by the Trial Court, as
ordered by a co-ordinate bench during the pendency of the appeal and he is
on bail. His bail bond shall stand discharged.
40. The appellant No.1/Anarul Sk, appellant No.3/Isahaque Sk. and the
appellant No.4/Mahidul Sk are set at liberty forthwith from the custody, if
not wanted in any other case, upon execution of a bond to the satisfaction
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of the Learned Trial Court, which shall remain in force for a period of six
months under Section 437A of the Code of Criminal Procedure
corresponding to Section 481 of the BNSS, 2023.
41. Let a copy of this judgment be sent down to the Court below for
information.
42. Let the T.C.R. be returned to the Court below at once.
43. Urgent photostat certified copy of this order, if applied for, be
supplied to the parties as early as possible.
(Rajasekhar Mantha, J.)
I agree.
(Ajay Kumar Gupta, J.)