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2007 DIGILAW 865 (CAL)

Golam Hossain Ans Seven v. STATE OF WEST BENGAL

2007-12-12

G.C.GUPTA, KISHORE KUMAR PRASAD

body2007
JUDGMENT:- (1). THIS appeal is directed against the judgment and order dated 19th July, 1994, passed by Sri Arup Das, Additional Sessions Judge, 3rd Court, Murshidabad, in Sessions Trial No. 2 of July 19,1994, arising out of Sessions Serial Case No. 72 of 1993 convicting the appellant Nos. 1 to 3 under Section 302 read with Section 34 of the Indian Penal Code, and the appellant Nos. 4 to 8 under Section 304 (Part-l) of the Indian Penal Code. All the appellants were also convicted under Section 201 of the Indian Penal code. By an order passed on 20th July, 1994, the appellant Nos. 1, 2 and 3 were sentenced to suffer rigorous imprisonment for life. No separate sentence for offence punishable under Section 201 of the Indian Penal Code was, however, passed. The appellant Nos. 4 to 8 were sentenced to suffer rigorous imprisonment for a period of eight years each. No separate sentence under section 201 of the Indian Penal Code was, however, passed. (2). THE facts and circumstances of the case briefly stated are that jayanta Pal, the deceased, and his brothers were carrying on business, inter alia, of running a mill. One Asmat was the guard of that mill. Jayanta pal and his brothers were followers of R. S. S. and Biswa Hindu Parishad. They appear to have performed Ramshila Puja which allegedly angered the members of the minority community and the members belonging to the C.P.M. Party. They are alleged to have threatened the Pal brothers of dire consequences. (3). THE case of the prosecution appears to be that consequent to such threat, Asmat, the watchman working in the mill belonging to the deceased and his brothers, refused to work any further. He, as a matter of fact, around ten days prior to the date of incident, returned the keys to them. On 22nd October, 1989, Jayanta Pal went to the mill for the purpose of sleeping there because there was no guard. On 23rd October, 1989, in the morning his body was found from a nearby pond. Extensive injuries were found on his dead body and the death was stated to be by reason of asphyxia. The eight appellants together with one Nikhil and Darjil were charge-sheeted. Nikhil and Darjil died during the pendency of the case. Rest of the eight accused persons were convicted and punished in the manner indicated above. Extensive injuries were found on his dead body and the death was stated to be by reason of asphyxia. The eight appellants together with one Nikhil and Darjil were charge-sheeted. Nikhil and Darjil died during the pendency of the case. Rest of the eight accused persons were convicted and punished in the manner indicated above. The appellant izmat is the father of the said watchman Asmat. (4). THE learned Trial Judge, we are sorry to say, wholly misdirected himself. Except for the fact that the deceased, his brothers and their said watchman were threatened by the accused persons, there was no other dependable evidence before him. The conviction, as a matter of fact, is based on the evidence of the Investigating Officer. The Investigating Officer in his evidence deposed about the statements made to him by the witnesses during examination under Section 161 of the Code of Criminal Procedure. Those witnesses were called at the trial; but each one of them became hostile. The question is what was the value of the evidence of the Investigating Officer even assuming that his evidence was based on the information given to him by the witnesses. At the highest, it can be said that the statements made to the Investigating Officer by the witnesses would not amount to hearsay evidence altogether because the informants were called as witnesses. It is, therefore, in evidence that such a statement or statements were made by the witnesses. But on that basis a finding of conviction cannot be recorded because the Court has to be satisfied that the statements made by the witnesses were factually true. Mere fact that such statements were made would not become dependable pieces of evidence for those statements were not backed by any oath nor were they tested by cross-examination. Therefore, the learned Trial Judge fell into a grievous error in recording the verdict of conviction on that basis alone. (5). MERE suspicion is not enough for the purpose of recording a verdict of conviction. May be that the learned Trial Judge had good reasons or strong reasons to suspect the complicity of the accused persons; but that alone is not sufficient. We are, under the circumstances, of the considered opinion that the conviction cannot be allowed to stand. (6). MR. Subir Ganguly, the learned Counsel, appearing for the State, did not try to support the judgment. (7). MR. We are, under the circumstances, of the considered opinion that the conviction cannot be allowed to stand. (6). MR. Subir Ganguly, the learned Counsel, appearing for the State, did not try to support the judgment. (7). MR. Dastoor, the learned Counsel, appearing for the appellants, submitted that there has been a miscarriage of justice. (8). FORTHE reasons indicated above, this appeal is allowed. The judgment and order under challenge are set aside. The appellants are already on bail. They are discharged of their liabilities of the bail bonds.