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Sunday, March 19, 2017

The injury found in the post mortem report was completely consistent with the ocular version of prosecution witnesses PW 2, PW 3 and PW 5 and the author of this injury according to the witnesses was accused No.1 Tarit Kundu. Special Leave Petition at the instance of Tarit Kundu having been dismissed the question that now arises is with regard to the involvement of the present appellants. The allegations coming from all the witnesses are consistent that none of the present appellants had dealt any blow by any weapon and all that they did was to participate in the scuffle. It is true that PWs 2 and 5 assert that the present appellants had caught hold of Raju Bose. But it is not clear from the record whether such act was so intended to enable accused No.1 to deal the fatal blow. Further, PW 3 is completely silent on this aspect. 8. In the circumstances we deem it appropriate to grant benefit of doubt to the present appellants and acquit them of the charge under Section 302 read with Section 34 IPC. This Appeal is thus allowed and the conviction and sentence recorded against the present appellants is set aside. The appellants shall be released forthwith unless their custody is required in connection with any other matter.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.703 OF 2008


Bishu Sarkar & Ors.                                            ….Appellants

                                   Versus

 State of West Bengal                                 …. Respondent

                               J U D G M E N T



Uday Umesh Lalit, J.

This appeal is directed against the  Judgment  and  Order  dated  06.06.2006
passed by Calcutta High Court in Criminal Appeal No.255/2000.



Six persons  namely  Tarit  Kundu,  Bishu  Sarkar,  Sahadeb  Sarkar,  Sasthi
Sarkar, Paresh Sarkar and Sukumar Ghosh were tried in Sessions  trial  No.18
of 1998 arising out of Raiganj  Police  Station  case  No.117  of  1995  for
having committed the murder  of  one  Raju  Bose  on  27.03.1995.   All  the
accused were found guilty by the trial court vide  its  judgment  and  order
dated  05.08.2000  and  sentenced  to  undergo  life  imprisonment  for  the
offences under Section 302 read with Section 34  IPC.   In  Criminal  Appeal
No.255 of 2000, the High Court acquitted accused Nos.5 and 6  namely  Paresh
Sarkar and Sukumar Ghose but  affirmed  the  conviction  and  sentence  with
respect to other four accused.  Special Leave  Petition  (Criminal)  No.5755
of 2006 preferred by accused No.1 Tarit kundu was dismissed  by  this  Court
on 01.12.2006.  This appeal by  other  three  convicted  accused  challenges
their conviction and sentence as affirmed by the High Court.


3.    The prosecution principally relies on the  testimony  of  PW  2  Nepal
Dey, PW 3 Gopal Dey and PW 5 Kanai Sharma.  According to PW2 Nepal Dey,

“The occurrence took place on the western side of the  National  Highway-34.
I heard a hue and cry coming from the side of NH 34 when I was fixing  up  a
fencing in my house.  As soon as I heard the hue and cry I gave a glance  to
the place wherefrom there was raising of hue and cry.   I  saw  accd.  Tarit
Kundu, Sahadeb Sarkar,  Sasthi  Sarkar,  Bishu  Sarkar,  Sukumar  Ghosh  and
Paresh Sarkar, in all six persons caught hold the collar of  shirt  of  Raju
Bose     and      assaulting      him      by      fist      and      blows.
………………………………....................................................Accd.
Sukumar Ghosh and Paresh Sarkar gave the order  to  kill  Raju  Bose.   Then
accd. Sasthi Sarkar, Bishu Sarkar, Sahadeb Sarkar had  remained  engaged  in
catching hold of Raju Bose.  Accd. Tarit Kundu gave a blow on  the  back  of
Raju Bose with the help of a sharp-cutting weapon like ‘bhojali’.”




4.        The testimony of PW3 Gopal Dey was to the following effect:-



“I was washing my hands and legs by the water of tube well within  my  house
at the relevant point of time.  I heard hue and cry  coming  from  the  road
side.  I gave a glance towards the road side and I saw that  a  dispute  was
going on over there.  I know the persons who were involved in this  dispute.
 Accd. Sasthi Sarkar, Tarit Kundu, Bishu  Sarkar  and  Sahadeb  Sarkar  were
engaged in assaulting the victim Raju Bose by fist and blows.   Accd.  Tarit
Kundu gave a blow on the back of the victim Raju Bose with  the  help  of  a
‘bhojali’ which I noticed.”


5. According to PW 5 Kanai Sarma:-



“I had proceeded near the place of occurrence.   I  saw  the  accused  Tarit
Kundu who had given a blow on the back side of Raju Bose with the help of  a
‘bhojali’. Acd. Tarit Kundu, Sahadeb Sarkar, Bishu  Sarkar,  Sasthi  Sarkar,
Paresh Sarkar and Sukumar Ghosh caught hold of Raju Bose  and  there  was  a
scuffle between themselves.”





6.    The  medical  evidence  on  record  was  unfolded  through  PW  9  Dr.
Rashbehari Ghosh who found:-



“One stab-wound transverse like margin incised 2” long on the left  side  of
chest, 1½” from midline on the back.  Tracing  the  track  it  is  found  to
perforate lung upper part of lower lobe through and through including  other
soft tissues in the well causing fatal bleeding.

      Opinion:- Death was due to shock as a result of ante mortem wound  and
haemorrhage as stated, homicidal in nature.

………………………………………………………………......The wound  was  inflicted  from  backside  and
perforated whole of the lung.”





7.    The injury found in the post mortem report was  completely  consistent
with the ocular version of prosecution witnesses PW 2, PW 3  and  PW  5  and
the author of this injury according to the witnesses was accused No.1  Tarit
Kundu.  Special Leave Petition at the instance of Tarit  Kundu  having  been
dismissed the question that now arises is with regard to the involvement  of
the present appellants.  The allegations coming from all the  witnesses  are
consistent that none of the present appellants had dealt  any  blow  by  any
weapon and all that they did was to participate in the scuffle.  It is  true
that PWs 2 and 5 assert that the present appellants had caught hold of  Raju
Bose.  But it is not clear from the record whether such act was so  intended
to enable accused No.1 to deal the fatal blow.  Further, PW 3 is  completely
silent on this aspect.



8.    In the circumstances we deem it appropriate to grant benefit of  doubt
to the present appellants and acquit them of the charge  under  Section  302
read with Section 34 IPC.  This Appeal is thus allowed  and  the  conviction
and sentence recorded against the present  appellants  is  set  aside.   The
appellants shall be released forthwith unless their custody is  required  in
connection with any other matter.



                                                               ………………………..J.
            (Adarsh Kumar Goel)


                                                             …………..……………..J.
            (Uday Umesh Lalit)
New Delhi
March 09, 2017

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