Calcutta High Court (Appellete Side)
Sukh Chand Ghosh & Ors vs The State Of West Bengal on 10 March, 2026
2026:CHC-AS:386
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Prasenjit Biswas
C.R.A. 396 of 2005
Sukh Chand Ghosh & Ors.
-Versus-
The State of West Bengal
For the Appellants : Mr. Suman Biswas,
For the State : Ms. Faria Hossain, Ld. APP,
Ms. Sonali Bhar.
Hearing concluded on : 27.02.2026
Judgment On : 10.03.2026
Prasenjit Biswas, J:-
1.
This appeal is directed against the impugned judgment and
order of conviction dated 21.05.2005 passed by the learned
Additional Sessions Judge, 5th Fast Track Court, Malda in
connection with Sessions Case No. 95/03 corresponding to
Sessions Trial No. 19(4)04 arising out of English Bazar P.S.
Case No. 68/93 dated 09.03.93 (G.R. Case No. 303/93).
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2. By passing the impugned judgment these appellants were
found guilty for commission of offence punishable under
Section 186/34 of the Indian Penal Code and they were
sentenced to suffer simple imprisonment for three months
each along with a fine of Rs.200/- each and in default of
payment of fine to undergo further simple imprisonment for
five days each.
3. Being aggrieved and by dissatisfied with the said impugned
judgment and order of conviction the present appeal is
preferred at the instance of the appellants.
4. In short compass, the case of the prosecution, as unfolded
from the written complaint and the materials collected during
investigation, may be delineated herein below:
“According to the prosecution, the instant
criminal proceeding was set into motion on the basis
of a complaint lodged by the de-facto complainant
before the concerned police station. In the said
complaint it was, interalia, alleged that on 9th March,
1993 at about 17:30 hours, at a place known as
Piyasbari, all the accused persons, including the
present appellants and some other associates,
unlawfully assembled together and formed an
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unlawful assembly with a common object to commit
acts of violence and to obstruct the police officials in
the lawful discharge of their duties. It was
specifically alleged that the members of the said
unlawful assembly were variously armed with deadly
and dangerous weapons such as arrows, hasua (a
sharp cutting instrument), lathis and other
implements capable of causing serious bodily harm.
While being so armed, the accused persons allegedly
indulged in rioting and wrongfully restrained the
defacto complainant along with the accompanying
police force from discharging their lawful public
functions. The prosecution case further proceeds
that in the course of the said incident the accused
persons, acting in furtherance of their common
object, allegedly launched a violent attack upon the
police personnel present at the spot. In particular, it
was alleged that Sub-Inspector Bijoy Krishna Dey
and Assistant Sub-Inspector Ananda Kumar Mondal
were assaulted by the members of the unlawful
assembly with the aforesaid weapons with the
intention of causing their death or, at the very least,
with the knowledge that such acts were likely to
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result in fatal consequences. As a result of the
alleged assault, both the aforesaid police officers
sustained injuries and were subsequently taken to
the hospital where they received medical treatment.
The incident was reported to the police and, on the
basis of the said written complaint, a formal police
case being English Bazar Police Station Case No. 68
of 1993 dated 09.03.1993 was registered.
Thereafter, the police authorities undertook
investigation into the allegations made in the
complaint. Upon completion of the investigation, the
Investigating Agency submitted a charge-sheet
against the present appellants and other accused
persons alleging commission of offences punishable
under Sections 147, 148, 149, 186, 353 and 307 of
the Indian Penal Code, thereby setting the criminal
law into motion against them for standing trial
before the learned Trial Court.”
5. The charge was framed against the accused persons by the
Trial Court under Section 148, 186/34, 353/34 and 307/34 of
the Indian Penal Code which was read over and explained to
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the accused persons and in reply they pleaded not guilty and
claimed to be tried.
6. In order to prove the case against the accused persons, the
prosecution had examined eighteen (18) witnesses and proved
some documents as exhibits. Neither any oral nor any
documentary evidence was adduced on the side of the
appellants.
7. Mr. Suman Biswas, learned Advocate appearing on behalf of
the appellants, has strenuously assailed the impugned
judgment and order of conviction passed by the learned Trial
Court. At the outset, the learned Advocate submitted that the
prosecution case suffers from serious infirmities and
inconsistencies which go to the root of the matter and render
the prosecution version highly doubtful.
8. It has been contended by Mr. Biswas, the learned Advocate
that there exist glaring discrepancies between the version
narrated in the First Information Report and the depositions of
the prosecution witnesses with regard to the nature and
extent of the injuries allegedly sustained in the course of the
incident. According to him, while the prosecution has
attempted to project a grave and violent assault upon the
police personnel, the oral testimonies of the witnesses do not
consistently support such allegations and materially deviate
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from the version as recorded in the FIR. Such inconsistencies,
according to the learned Advocate, cast a serious doubt upon
the veracity and reliability of the prosecution case.
9. The learned Advocate further submitted that the statements of
the prosecution witnesses are replete with material
contradictions and omissions which have remained
unexplained by the prosecution. It has been argued that the
witnesses examined on behalf of the prosecution have not
given a consistent and coherent account of the alleged
occurrence and, in several material particulars, their
statements contradict each other. These contradictions and
omissions, according to the learned Advocate, materially affect
the credibility of the witnesses and weaken the prosecution’s
attempt to establish the guilt of the appellants. It has also
been vehemently argued that the prosecution has failed to
examine any independent witness in order to corroborate the
allegations made in the complaint. According to the learned
Advocate, the entire prosecution case rests primarily upon the
testimonies of police personnel who were themselves allegedly
involved in the incident. In the absence of any independent
and disinterested witness to support the prosecution version,
the evidentiary value of such interested testimonies ought to
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have been scrutinized with greater caution by the learned Trial
Court.
10. In this connection, the learned Advocate specifically referred
to the evidence of PW4, Lalu Rajak, and PW10, Sachindranath
Mondal, who were cited by the prosecution as witnesses to the
alleged seizure of certain articles. It has been pointed out that
neither of the said witnesses stated anything in their evidence
regarding the seizure allegedly effected by the police. Their
failure to support the prosecution in respect of the alleged
seizure, according to the learned Advocate, seriously
undermines the prosecution’s claim regarding the recovery of
the incriminating articles.
11. The learned Advocate further contended that the alleged
seized articles were neither produced before the learned Trial
Court nor marked as material exhibits during the course of
trial. Such omission, according to him, creates a serious
lacuna in the prosecution case and raises grave doubts
regarding the genuineness of the alleged seizure and the
overall narrative of the prosecution with regard to the
occurrence of the incident.
12. It has also been submitted that although the prosecution
claimed that PW18, Sub-Inspector Bijoy Krishna Dey, and
PW15, Constable/36 Jagabandhu Adhikari, had sustained
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injuries during the alleged incident and were admitted to the
hospital for treatment, no proper medical documents in
support of such injuries were brought on record. The learned
Advocate pointed out that apart from two medical admission
tickets indicating their admission to the hospital, no injury
report, medical certificate, or other relevant medical document
was produced before the Court to substantiate the claim that
they had in fact sustained injuries in the alleged assault.
According to the learned Advocate, no explanation whatsoever
has been offered either by the prosecution or by the
Investigating Officer as to why the injury reports of the
alleged injured persons were not collected during the course of
investigation and produced before the Court. The absence of
such crucial medical evidence, it is argued, creates a serious
doubt regarding the prosecution’s allegation that the said
police personnel had sustained injuries in the incident as
alleged.
13. The learned Advocate further argued that the learned Trial
Court, while passing the impugned judgment of conviction,
placed undue reliance upon the testimonies of the police
personnel who were examined as prosecution witnesses.
According to him, despite the existence of material
discrepancies and inconsistencies in their evidence, the
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learned Trial Court accepted their statements without proper
scrutiny and proceeded to record the conviction of the
appellants.
14. It has also been emphasized that no independent witness
came forward to support the prosecution case, although there
was ample opportunity and scope for the prosecution to cite
and examine such witnesses. The failure of the prosecution to
examine independent witnesses, particularly in a case of this
nature where the incident allegedly took place in a populated
locality, according to the learned Advocate, further weakens
the prosecution case.
15. The learned Advocate further contended that the learned Trial
Court erred in relying solely upon the testimonies of the
alleged victims themselves to conclude that the appellants had
attacked them. According to him, such a finding, in the
absence of corroborative independent evidence and in the face
of material contradictions and deficiencies in the prosecution
case, cannot be sustained in the eye of law.
16. Lastly, the learned Advocate submitted that it is a well-settled
principle of criminal jurisprudence that the burden lies
squarely upon the prosecution to prove its case beyond all
reasonable doubt. In the present case, according to him, the
prosecution has failed to discharge that burden inasmuch as
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the evidence adduced is neither consistent nor credible and
suffers from serious lacunae.
17. On these grounds, the learned Advocate urged that the
prosecution has failed to establish the guilt of the appellants
beyond reasonable doubt and, therefore, the impugned
judgment and order of conviction passed by the learned Trial
Court is liable to be set aside. Accordingly, it has been prayed
that the present appeal be allowed and the appellants be
acquitted of the charges levelled against them.
18. Ms. Faria Hossain, learned Advocate appearing on behalf of
the State, has strongly defended the impugned judgment and
order of conviction, submitting that the prosecution has
successfully discharged its burden of proof beyond reasonable
doubt. The learned Advocate contended that there are no
materials on record which would render the evidence of the
key prosecution witnesses namely PW2, PW14, PW15, and
PW18 untrustworthy. She emphasized that all these witnesses
deposed consistently before the learned Trial Court in support
of the prosecution case and that their veracities were not
shaken during cross-examination. Consequently, their
testimonies, according to the learned Advocate, deserve full
credence and cannot be disbelieved.
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19. In particular, attention was drawn to the evidence of PW14,
Sub-Inspector of Police Ananda Kumar Mondal, who is also
one of the alleged injured witnesses. PW14 deposed that he,
along with PW18, Sub-Inspector Bijoy Krishna Dey, sustained
injuries as a result of the assault by a large crowd throwing
brickbats and stones at the police personnel. PW14 further
stated that the crowd was armed with weapons such as lathis,
hasua, and farse, and that he and the other injured police
personnel were subsequently treated at Malda Sadar Hospital.
The learned Advocate submitted that the medical tickets
produced and marked as Exhibit-7 corroborate the fact that
these witnesses received treatment for injuries sustained in
the incident, thereby lending credibility to their account.
20. Further, the learned Advocate emphasized the testimony of
PW15, Constable No. 36 Jagabandhu Adhikari, and another
alleged injured witness. PW15 deposed in alignment with
PW14, stating that prior to reaching Piyasbari, they were
attacked by the crowd, which threw brickbats at them. He
further alleged that the accused persons actively participated
in the assault by throwing hasua and farse towards the police
personnel. Importantly, PW15 identified the five accused
persons present at the scene during the incident. The learned
Advocate highlighted that the cross-examination conducted by
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the defence failed to shake the veracity of PW15’s testimony,
and therefore his statements remain reliable and admissible as
substantive evidence.
21. PW18, Sub-Inspector Bijoy Krishna Dey, also corroborated the
statements of PW14 and PW15. He deposed that upon
reaching Piyasbari, they were confronted by a mob of 300/400
people, armed with hasua, lathis, stones, arrows, and bows.
According to PW18, the crowd attacked not only the police
personnel but also their jeep with hasua and brickbats. As a
result, both PW14 and PW15 sustained injuries. PW18 further
testified that he himself received injuries in the attack and
that he, along with PW14 and PW15, was treated at Malda
Sadar Hospital.
22. The learned Advocate also relied on the medical evidence
provided by PW17, Dr. Ruchira Banerjee, who examined PW18
in the Emergency Department. The doctor stated that upon
examination, he found an abrasion on PW18’s right hand. This
emergency treatment ticket was marked as Exhibit-7 and
corroborates the occurrence of injuries resulting from the
incident.
23. In summation, the learned Advocate submitted that a
thorough appreciation of all the evidences including oral
testimony of PW2, PW14, PW15, and PW18, as well as the
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documentary evidence such as Exhibit-7 demonstrates that
the prosecution successfully proved the occurrence of the
incident and the injuries sustained by the injured persons. The
learned Advocate argued that the learned Trial Court rightly
relied upon this consistent and unshaken evidence to convict
the appellants. She emphasized that there is no material
irregularity, illegality, or procedural defect in the impugned
judgment and order of conviction.
24. Accordingly, it was prayed by the learned Advocate that the
impugned judgment and order of conviction passed by the
learned Trial Court be upheld in its entirety and that the
present appeal preferred by the appellants be dismissed, as
there exists no valid ground to interfere with the lawful
conviction recorded against them.
25. I have anxiously considered the rival submissions advanced by
both the parties and have gone through all the materials on
record.
26. In the present case, the prosecution has examined several
witnesses in order to substantiate the allegations levelled
against the appellants. Among them, PW3 Mukul Mondal, PW4
Lalu Rajak, PW5 Jiten Das, PW6 Ratan Das, PW8 Niren Ghosh
and PW9 Sonatan Rajak were cited as independent witnesses
by the prosecution. PW7 was examined as the medical officer.
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Apart from these witnesses, the remaining witnesses
examined by the prosecution are police personnel who were
either members of the alleged police force present at the spot
or were otherwise connected with the investigation of the
case.
27. Thus, it is evident that the prosecution had the opportunity to
rely upon independent witnesses in order to lend corroboration
to the allegations made in the complaint and to strengthen the
credibility of the prosecution version. However, a careful
scrutiny of the evidence adduced during the trial reveals that
the testimony of such independent witnesses does not
substantially support the case of the prosecution.
28. In this connection, particular importance is attached to the
evidence of PW4 Lalu Rajak and PW10 Sachindranath Mondal,
who were cited by the prosecution as witnesses to the alleged
seizure of certain articles in connection with the case. The
prosecution sought to rely upon their testimony to prove that
incriminating articles were seized during the course of
investigation, thereby lending support to the allegation that
the accused persons had used weapons during the incident.
29. However, the evidence of PW4 Lalu Rajak does not support
the prosecution case in this regard. PW4 categorically stated
in his deposition that he did not put his left thumb impression
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(L.T.I.) on the seizure list dated 09.03.1993. When the alleged
thumb impression appearing on the said seizure list was
shown to him during the course of his examination, he
virtually denied the same and did not admit that the said
thumb impression belonged to him. Moreover, PW4 further
stated that he knew nothing about the incident in question.
Thus, far from supporting the prosecution case, the testimony
of this witness casts serious doubt on the authenticity and
genuineness of the alleged seizure list.
30. Significantly, despite such statements made by PW4 which
were clearly inconsistent with the prosecution version, the
prosecution did not take steps to declare him hostile nor did it
cross-examine him with the permission of the Court in order
to confront him with his earlier statement or to elicit the truth.
The failure of the prosecution to adopt such a course assumes
considerable importance, as it indicates that the testimony of
the witness remained unchallenged and untested by the
prosecution itself.
31. Similarly, the evidence of PW10 Sachindranath Mondal, who
was also cited as a witness to the seizure, does not advance
the case of the prosecution. In his cross-examination, PW10
stated that he had signed the seizure list on a road which was
situated at a distance of about one and a half kilometres from
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Piyasbari, the alleged place of occurrence. He further stated
that he had put his signature on the seizure list at the instance
and direction of the police personnel. More importantly, PW10
clearly stated that he did not know what articles had been
seized in connection with the case.
32. The statements made by PW10 clearly indicate that he had no
personal knowledge about the alleged seizure and that his
signature was obtained merely at the instance of the police
without being aware of the contents or the articles mentioned
in the seizure list. Such evidence seriously undermines the
evidentiary value of the seizure list and casts doubt on the
manner in which the alleged seizure was conducted.
33. It is also noteworthy that, similar to PW4, this witness PW10
was also not declared hostile by the prosecution, despite the
fact that his testimony did not support the prosecution case
regarding the seizure of the alleged articles. Consequently, the
prosecution did not cross-examine him to clarify the
circumstances under which his signature was obtained or to
establish the authenticity of the seizure proceedings.
34. Therefore, from the evidence of both PW4 and PW10, it clearly
emerges that the witnesses cited by the prosecution to prove
the seizure have not supported the prosecution case in any
meaningful manner. On the contrary, their statements create
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a serious doubt regarding the genuineness of the alleged
seizure and the manner in which the investigation was
conducted.
35. In such circumstances, when the very witnesses cited to prove
the seizure fail to support the prosecution case and the
prosecution does not even attempt to treat them as hostile or
challenge their testimony, the evidentiary value of the alleged
seizure becomes highly doubtful. This circumstance materially
weakens the prosecution case and creates a significant gap in
the chain of evidence sought to be established against the
appellants.
36. PW18, Sub-Inspector of Police Bijoy Krishna Dey, who is also
the defacto complainant in the present case, has been
examined by the prosecution as one of the principal witnesses
to establish the alleged occurrence. In his deposition before
the Court, PW18 stated that as soon as the police force
reached Piyasbari, a large mob consisting of about 300 to 400
persons suddenly attacked them. According to him, the said
mob was armed with various weapons such as hasua, lathi,
stones, arrows and bows, and they allegedly assaulted the
police personnel and even attacked the police jeep with hasua
and brickbats. However, a careful examination of the materials
on record reveals that the said version of PW18 is not
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satisfactorily supported by the investigation conducted in the
case. Although the witness alleged that the assailants were
armed with weapons like hasua and lathis and that those
weapons were used during the alleged attack, the
Investigating Agency did not seize any such weapons during
the course of investigation. The non-seizure of such allegedly
used weapons assumes considerable significance, particularly
when the prosecution case is that the accused persons were
armed with deadly and dangerous weapons and had used
them in the course of the incident. The failure on the part of
the Investigating Officer to recover or seize any of those
weapons creates a serious gap in the prosecution case and
casts doubt on the veracity of the allegations made regarding
the nature of the attack.
37. PW18 further stated in his evidence that during the course of
the alleged incident PW14, Assistant Sub-Inspector of Police
Ananda Kumar Mondal, was assaulted with brickbats and that
PW15, Constable No. 36 Jagabandhu Adhikari, also sustained
injuries as a result of the said attack. However, the statement
made by PW18 in this regard appears to be inconsistent with
the evidence of PW16, Sub-Inspector of Police Nepal Chandra
Sen. In his cross-examination, PW16 categorically stated that
PW15 did not suffer any injury from the throwing of stones.
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This contradiction between the testimonies of the prosecution
witnesses on the question of whether PW15 actually sustained
injuries during the alleged incident creates a serious doubt
regarding the truthfulness and reliability of the prosecution
version.
38. PW18 further stated that after the incident he went to Malda
Sadar Hospital along with PW14 and PW15 for treatment and
that they were treated there for the injuries sustained in the
alleged attack. However, despite such claim, no injury report
or medical certificate indicating the nature, extent or
seriousness of the injuries sustained by the alleged victims
was produced before the Court. In the present case, the
prosecution merely produced certain medical admission tickets
which were marked as Exhibit-7. These documents only
indicate that the persons concerned were admitted to the
hospital, but they do not disclose the nature of the injuries
allegedly sustained by them. The absence of any injury report
or medical opinion regarding the injuries significantly weakens
the prosecution case, particularly when the allegation is that
the police personnel were violently attacked by a large armed
mob.
39. Similarly, PW15, Constable No. 36 Jagabandhu Adhikari, who
was also projected as one of the injured witnesses, stated in
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his cross-examination that he sustained an injury on his leg
due to the throwing of stones and that he received treatment
at Malda Hospital for the said injury. However, quite
surprisingly, no injury report, medical certificate or treatment
record was brought on record by the prosecution in order to
substantiate his claim. In the absence of such medical
evidence, the assertion made by PW15 regarding the injury
allegedly sustained by him remains uncorroborated and
unsupported by any documentary proof.
40. Furthermore, PW15 stated in his cross-examination that the
Investigating Officer had seized a rifle and cartridges in
connection with the case. However, during the course of trial
those alleged seized articles were neither produced before the
Court nor shown to the witness. PW15 himself admitted during
his deposition that he did not find the said seized rifle and
cartridges in the Court at the time when he was giving his
evidence. The non-production of the alleged seized rifle and
cartridges before the Court creates a serious lacuna in the
prosecution case. When the prosecution asserts that certain
incriminating articles were seized during the investigation, it is
incumbent upon the prosecution to produce those articles
before the Court and have them marked as material exhibits
in order to establish the authenticity of the seizure. The failure
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to do so raises legitimate doubts regarding whether such
seizure was in fact made in the manner alleged by the
prosecution.
41. Thus, the absence of seizure of the alleged weapons used in
the attack, the contradictions in the testimonies of the
prosecution witnesses regarding the injuries sustained, the
failure to produce injury reports of the alleged injured
persons, and the non-production of the alleged seized rifle and
cartridges before the Court collectively create serious doubts
about the prosecution story. These deficiencies materially
weaken the prosecution case and undermine the reliability of
the evidence relied upon to establish the guilt of the
appellants.
42. PW14, Sub-Inspector of Police Ananda Kumar Mondal, who
has also been projected by the prosecution as one of the
injured witnesses in the alleged occurrence, stated in his
deposition that on 09.03.1993 he noticed about 200/250
persons belonging to the Ghosh community assembled at the
place of occurrence and that they were allegedly creating
disturbance among themselves while being armed with
weapons such as lathis, swords and similar articles. According
to him, the situation at the spot was tense and the persons
assembled there were equipped with such weapons.
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43. However, a careful examination of the record reveals that
none of the alleged weapons such as lathis or swords, which
according to this witness were present at the spot, were
seized by the Investigating Agency during the course of
investigation. Nor were any such articles produced before the
Court and marked as material exhibits during the trial in order
to substantiate the prosecution case. When the prosecution
alleges that a large number of persons were present at the
place of occurrence armed with weapons and that those
weapons were used in the course of the incident, it becomes
the duty of the Investigating Officer to seize such articles, if
available, and produce the same before the Court to
corroborate the oral testimony of the witnesses. The failure to
seize or produce such weapons in the present case creates a
significant gap in the prosecution case and raises doubt
regarding the veracity of the allegations made by the witness.
44. PW14 further stated that he, along with the other alleged
injured police personnel, was taken to Malda Hospital where
they were treated for the injuries sustained by them in the
course of the incident. However, despite such claim, no injury
report or medical certificate relating to the injuries allegedly
sustained by him was produced before the Court. The
prosecution has not brought on record any medical document
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which could indicate the nature, extent or seriousness of the
injury allegedly suffered by PW14. In the absence of any such
documentary medical evidence, the claim made by this
witness regarding the injuries sustained by him remains
unsubstantiated. Therefore, in the absence of any cogent and
reliable medical document, the assertion made by PW14
regarding the injuries allegedly suffered by him cannot be
accepted with certainty.
45. It is also noteworthy that several independent witnesses cited
by the prosecution, namely PW3 Mukul Mondal, PW5 Jiten
Das, PW6 Ratan Das, PW8 Niren Ghosh and PW9 Sonatan
Rajak, did not support the prosecution case during their
examination before the Court. As their testimony did not align
with the prosecution version, they were declared hostile by the
prosecution and were subjected to cross-examination by the
prosecution itself. However, even after such cross-
examination, nothing could be elicited from their testimony
which would lend support to the case of the prosecution or
corroborate the allegations made against the accused persons.
Consequently, the evidence of these witnesses does not
advance the prosecution case in any material manner.
46. PW7, Police Driver No. 112 Jiban Bhoumik, stated in his
evidence that when he arrived at the place of occurrence he
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noticed that both parties were attempting to create
disturbance with hasua and lathis and that upon seeing the
police personnel, the mob started attacking them with bricks.
In his cross-examination, this witness stated that the glasses
of the police jeep were broken due to the throwing of bricks.
However, he was unable to state whether Sub-Inspector Anil
Rai sustained any injury as a result of such brick throwing.
Significantly, this witness did not state anything in his
evidence regarding the injuries allegedly sustained by PW14,
PW15 or PW18. Thus, his testimony does not provide any
corroboration regarding the alleged injuries claimed by those
witnesses.
47. The medical evidence in the present case also does not
satisfactorily support the prosecution case. PW17, Dr. Ruchira
Banerjee, who examined PW18 in the Emergency Department,
stated that upon examination she found one abrasion on the
right hand of PW18. However, during her cross-examination
she admitted that she had not recorded the history of assault
in the medical ticket, nor had she mentioned the name of the
father of the said injured person in the medical record. She
further stated that if a person falls upon a blunt object or
surface, he or she may sustain an abrasion on the body.
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48. Thus, the medical evidence given by the doctor does not
conclusively establish that the abrasion found on PW18 was
the result of an assault by the accused persons as alleged by
the prosecution. The possibility of such injury being caused by
a fall on a blunt surface has not been ruled out by the medical
witness. Moreover, as already noted, no detailed injury report
or medical certificate was produced by the prosecution
showing the injuries allegedly sustained by PW14, PW15 and
PW18.
49. Therefore, when the alleged injured persons claim to have
sustained injuries in the course of a violent attack by a large
mob but the prosecution fails to produce proper medical
records showing the nature of such injuries, the evidentiary
value of their claim becomes doubtful. The absence of injury
reports, coupled with the inconclusive medical testimony and
the failure to produce alleged weapons, significantly weakens
the prosecution case and raises serious doubt regarding the
manner in which the alleged incident is said to have occurred.
50. A careful scrutiny of the evidence of the prosecution witnesses
in the instant case reveals substantial infirmities, omissions,
and contradictions which seriously undermine the prosecution
case. In particular, the testimony of PW1, H.G. 339 Faruq Sk.,
virtually demolishes the prosecution narrative regarding both
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the alleged injuries and the alleged firing by police personnel
during the incident.
51. PW1, in his examination-in-chief, candidly stated that he could
not say whether any police officer sustained injuries as a
result of the attack by the accused persons on the date of the
incident. The prosecution had alleged that one of the members
of the mob sustained injury due to firing by PW15, Constable
Jagabandhu Adhikari. PW1, although claiming presence at the
scene, admitted that he could not testify with certainty as to
whether any of the mob had been injured by the firing. He
merely stated that he “later came to learn” that someone from
the mob was allegedly injured. Such a vague assertion, made
without personal knowledge and based solely on hearsay,
considerably diminishes the credibility of the prosecution’s
claim regarding injuries caused by gunfire. Further, during
cross-examination, PW1 disclosed that he was never examined
by the Investigating Officer and that his statement was being
recorded for the first time in Court. The fact that this witness
did not provide any statement during the investigation makes
his testimony extremely weak and unreliable. Statements
made for the first time in Court without prior examination by
the Investigating Officer are generally accorded very limited
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evidentiary value, particularly in cases involving allegations of
violence and injuries.
52. Similarly, PW2, Sub-Inspector of Police Anil Kumar Roy,
deposed that the mob threw bricks at the police personnel,
and that as a result PW18 (S.I. Bijoy Krishna Dey) and PW14
(A.S.I. Ananda Kumar Mondal) sustained injuries. However, as
already highlighted, no injury reports in respect of PW18 and
PW14 were ever produced before the Court. The absence of
any medical documentation renders the claims of PW2
regarding the injuries inherently doubtful. Moreover, PW2
failed to identify any of the alleged miscreants before the
Court, further weakening the prosecution’s assertion that the
accused persons specifically caused the injuries. Without
corroborative medical evidence and identification of the
perpetrators, the testimony of PW2 lacks credibility and
cannot be relied upon to establish the alleged assault.
53. PW16, Sub-Inspector Nepal Chandra Sen, the first
Investigating Officer, also revealed substantial deficiencies in
the prosecution case. PW16 stated that he had seized one rifle
and one cartridge through a seizure list dated 10.03.1993
(Exhibit-5/3), but admitted that these items were neither
produced in Court nor marked as material exhibits. This non-
production of the alleged seized articles significantly
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undermines the authenticity of the seizure and raises serious
doubts regarding the prosecution’s claim of recovering
incriminating articles used in the incident. PW16 further stated
that he had sent a requisition to the hospital on 30.03.1993
for the collection of injury reports of the alleged injured
persons. Yet, no such injury reports were ever produced in
Court, and the Investigating Officer failed to provide any
explanation for this glaring omission. The absence of these
reports is particularly significant because it prevents
verification of the alleged injuries and undermines the
prosecution’s claim that police personnel sustained harm
during the incident.
54. In addition, PW16 acknowledged that he did not identify the
accused persons in Court at the time of his deposition. He also
recounted statements allegedly made to him by PW3, Mukul
Mondal, wherein PW3 claimed that on 09.03.1993 he
witnessed a dispute between the Ghosh and Mondal
communities at Piyasbari, that the police arrived around 5:30
P.M., and that about 300 persons surrounded the police party,
throwing brickbats at them, prompting the police to fire in
self-defense. However, at the time of giving evidence in Court,
PW3 had turned hostile and did not support his earlier
statement made before PW16. The same fate befell PW6 and
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PW9, who were also declared hostile and failed to corroborate
the narrative they had allegedly provided to the Investigating
Officer. This divergence between pre-trial statements and
courtroom testimony severely weakens the reliability of the
Investigating Officer’s account and raises questions regarding
the consistency and authenticity of the prosecution evidence.
55. PW16 further admitted that he did not collect the injury
reports in connection with the case and that he did not see the
seized articles in Court when giving his deposition.
Importantly, he also stated that PW15, Constable Jagabandhu
Adhikari, did not suffer any injury from the stones allegedly
thrown by the mob. This admission directly contradicts the
evidence of PW18, who claimed in his examination-in-chief
that PW15 sustained injury due to the attack. Such
contradictions between key prosecution witnesses significantly
erode the credibility of the prosecution’s narrative regarding
the injuries and the sequence of events during the alleged
attack.
56. In sum, the testimony of PW1, PW2, and PW16, taken
together, highlights multiple infirmities in the prosecution
case: the absence of injury reports for the alleged injured,
non-production of seized articles, hostile or uncorroborated
witnesses, failure to identify accused persons, and internal
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contradictions regarding injuries sustained by police
personnel. These factors collectively create serious doubt
about the reliability and veracity of the prosecution’s story and
seriously undermine the foundation upon which the conviction
of the appellants was based.
57. Upon a careful and holistic appreciation of the evidence
brought on record, it becomes manifest that the prosecution
has failed to establish the occurrence of the alleged incident
beyond reasonable doubt. Equally, the prosecution has not
been able to substantiate the claim regarding the injuries
allegedly sustained by the so-called injured persons, as no
proper medical documentation was placed before the Court to
corroborate their assertions. The absence of injury reports,
certificates, or any medical evidence severely undermines the
credibility of the claim that the police personnel sustained
injuries during the alleged attack.
58. A significant weakness in the prosecution case is the
conspicuous absence of independent witnesses to corroborate
the version of the prosecution. The learned Trial Judge, in the
impugned judgment, relied solely upon the testimonies of
witnesses who were police personnel involved in the incident.
However, these very witnesses’ statements are replete with
contradictions, omissions, and inconsistencies. Their
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testimonies do not form a coherent and consistent narrative of
the alleged events. In particular, discrepancies exist regarding
the number of persons present at the scene, the nature and
extent of the injuries sustained, and the sequence of the
alleged assault and firing. Such contradictions render their
testimony inherently unreliable, especially when the evidence
of disinterested witnesses is entirely absent.
59. Further, the prosecution has asserted that certain articles,
allegedly used as weapons during the incident, were seized in
the presence of independent witnesses. However, during their
depositions, PW4 and PW10, who were cited as witnesses to
the seizure, explicitly disavowed any knowledge of the alleged
seizure. PW4 denied putting his thumb impression on the
seizure list and stated that he knew nothing about the
incident, while PW10 admitted that he had merely signed the
seizure list at the instance of the police and had no knowledge
of the articles seized. Such evidence renders the prosecution’s
claim regarding the seizure of the offending weapons highly
doubtful and casts serious doubt on the authenticity of the
seizure proceedings.
60. Additionally, the prosecution repeatedly claimed that large
mobs, varying from 200 to 400 persons, were present at the
place of occurrence. Despite this, the prosecution failed to
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examine a single person from among such crowds as an
independent witness to corroborate their case. The absence of
testimony from any person who was allegedly present at the
scene further weakens the prosecution’s account and
underscores the lack of corroborative evidence to establish the
occurrence of the incident.
61. In light of these deficiencies, it is apparent that the learned
Trial Court placed undue reliance solely upon the testimony of
police personnel without any independent corroboration.
Convictions based solely on the statements of interested
witnesses, when such statements are fraught with
contradictions and omissions, cannot be sustained under the
principles of criminal law. The findings recorded by the learned
Trial Court are therefore replete with conjectures and
surmises, rather than being founded upon evidence beyond
reasonable doubt.
62. Moreover, the alleged offending weapons, which were claimed
to have been used by the accused, were never produced
before the Court nor marked as material exhibits. The non-
production of these critical articles amounts to a material
irregularity and demonstrates a failure on the part of the
prosecution to establish essential aspects of its case.
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63. In view of the foregoing discussions, it is evident that the
impugned judgment and order of conviction are vitiated by
material irregularities, illegality, and a failure to appreciate the
evidentiary lacunae in the prosecution case. The conviction
recorded by the learned Trial Court cannot be sustained under
the eyes of law and is, therefore, liable to be set aside, and
the appellants deserve to be acquitted of all charges levelled
against them.
64. So, the instant appeal be and the same is hereby allowed,
65. Accordingly, the impugned judgment and order of conviction
passed by the learned Trial Court dated 21.05.2005 passed by
the learned Additional Sessions Judge, 5th Fast Track Court,
Malda in connection with Sessions Case No. 95/03
corresponding to Sessions Trial No. 19(4)04 arising out of
English Bazar P.S. Case No. 68/93 dated 09.03.93 (G.R. Case
No. 303/93) is hereby set aside.
66. The appellants are on bail. They are to be discharged from
their respective bail bonds and be set at liberty if they are not
wanted in connection with other case.
67. In compliance with the mandate of Section 437A of the Code
of Criminal Procedure (corresponding to Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant is
required to execute bail bonds with adequate sureties. Such
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bonds, upon being furnished, shall remain operative and
binding for a period of six months, thereby ensuring the
availability of the appellant to appear before the higher forum,
if so required, and safeguarding the proper administration of
justice.
68. Let a copy of this judgment along with the Trial Court record
be sent down to the Trial Court immediately.
69. Urgent Photostat certified copy of this order, if applied for, be
given to the parties on payment of requisite fees.
(Prasenjit Biswas, J.)