Manoranjan Patra & Ors. vs The State Of West Bengal

MD. SHABBAR RASHIDI, J.:-

The appeal is directed against judgment of conviction dated December 21, 2022 and order of sentence dated December 22, 2022 passed in Special Case No. 78 of 2018.

By the impugned judgement, the learned Trial Court found the appellants guilty of the offences punishable under Sections 147/148/ 447/506/149 of the Indian Penal Code. The three appellants were also convicted for the offence punishable under Section 302/149 of the Indian Penal Code.

By the impugned order of sentence, appellant Ajbahar Khan was sentenced to undergo rigorous imprisonment for life with a fine of ₹50,000/- for committing the offence punishable under Section 302 of the Indian Penal Code, 1860. In default of payment of fine, he was directed to suffer rigorous imprisonment for a further period of six months. He was further sentenced to undergo rigorous imprisonment of 1 year with a fine of ₹1,000/- for the offence punishable under Section 147 of the Code of 1860. In default of payment of fine, he was to suffer rigorous imprisonment for one month. Convict Ajbahar was further sentenced to rigorous imprisonment of two years and a fine of ₹1,000/- for the offence punishable under Section 148 of the Indian Penal Code. In default of payment of fine, he was to suffer rigorous imprisonment for a further period of one month. He was also sentenced to suffer rigorous imprisonment for 3 months and a fine of ₹100/- for committing the offence punishable under Section 447/149 of the Indian Penal Code. In default of payment of such fine, he was directed to undergo rigorous imprisonment for 15 days. Convict Ajbahar Khan was also sentenced to suffer rigorous imprisonment of 2 years and a fine of ₹500/- for the offence punishable under Section 506/149 of the Code. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of one month.

The other two appellants Jiten Patra and Manorajan Patra were also sentenced to undergo rigorous imprisonment for life with a fine of ₹50,000/- for committing the offence punishable under Section 302/149 of the Indian Penal Code. In default of payment of fine, they were directed to suffer rigorous imprisonment for a further period of six months. They were further sentenced to undergo rigorous imprisonment of 1 year with a fine of ₹1,000/- for the offence punishable under Section 147 of the Code of 1860. In default of payment of fine, they were to suffer rigorous imprisonment for one month. Said two convicts were also sentenced to rigorous imprisonment of two years and a fine of ₹1,000/- for the offence punishable under Section 148 of the Indian Penal Code. In default of payment of fine, he was to suffer rigorous imprisonment for a further period of one month. They were also sentenced to undergo rigorous imprisonment for 3 months and a fine of ₹100/- for committing the offence punishable under Section 447/149 of the Indian Penal Code. In default of payment of such fine, he was directed to undergo rigorous imprisonment for 15 days. In addition, convicts Jiten Patra and Manorajan Patra were also sentenced to suffer rigorous imprisonment of 2 years and a fine of ₹500/- for the offence punishable under Section 506/149 of the Code. In default of payment of fine, they were directed to undergo rigorous imprisonment for a further period of one month. All the sentences awarded to all the appellants were directed to run concurrent.

Learned senior advocate for the appellants submitted that the prosecution palpably failed to bring home the charges levelled against the appellants at the trial, and therefore, they could not have been convicted. It was also submitted that the learned Trial Court failed to appreciate that the offending weapon or the bullet was not recovered and proved at the trial.

Learned senior advocate for the appellants further submitted that the place of occurrence has not been established at the trial. There are material contradictions between the testimonies of the prosecution witnesses as to the proof of the place of occurrence. It was also contended that there are contradictory statements by the prosecution witnesses with regard to the identity of the actual assailant. The prosecution witnesses have not named the appellants as such assailant.

The Learned senior advocate for the appellants further submitted that the learned Trial Court failed to appreciate the evidence led at the trial that at the date and time of the alleged incident, appellant no. 1 was present in the West Bengal Legislative Assembly. He was not present at the alleged place of occurrence. Moreover, the ocular evidence led at the trial is not corroborated by the medical evidence relied by the prosecution. Learned senior advocate also contended that the conviction of the appellants is bad in law in so far as it is based on the principle of preponderance of probability. Instead, in a criminal proceeding, proof beyond all reasonable doubts is the cardinal principle to secure conviction of an accused.

On the other hand, learned advocate appearing for the State submitted that the prosecution has proved the charges levelled against the appellants with the help of convincing evidence at the trial. Learned Trial Judge was quite justified in convicting the appellants. He stood by the impugned judgment and order and submitted that the impugned judgment and order is liable to be affirmed.

On June 30, 2010 at 10.05 hrs, one Ismail Khan, the son of the victim lodged a written complaint with Taldangara Police Station stating inter alia that on June 29, 2010 at about 5 O’clock in the afternoon a group of 20 persons named in the written complaint along with 40-50 men of CPIM party, being led by the appellant Manoranjan Patra and being armed with weapons like pistols, pole axes, bombs, bhojalis, spears and other deadly weapons, attacked the house of the de facto complainant with an intention to kill his father Madan Khan. The written complaint also stated that at that time, his father was standing in front of his house. Out of sudden attack, the father of de facto complainant was shocked and remained standing. The written complaint also described that hearing the upheaval, the de facto complainant came out of the house and saw that Manoranjan Patra shot at father of the de facto complainant and ordered others to shoot him. At his instigation, Ajbahar Khan shot at the father of the de facto complainant with the gun he was carrying. The bullet hit the father of the de facto complainant and as a result he was smeared with blood. He fell down on to the ground and died instantly. It was also stated that the miscreants continued bombing throughout the night and threatened the de facto complainant to kill him as well.

The written complaint also disclosed that the father of the de facto complainant was threatened by the miscreants; however, his father did not leave Trinmool Party. His brother Amzad Ali Khan and one Safikul Islam also received gunshot injuries being shot by one Hiten Patra and were admitted in the hospital.

On the basis of such written complaint, Taldangara P.S. Case No. 28 of 2010 dated June 30, 2010 under Sections 148/149/447/ 427/326/307/302/506 of the Indian Penal Code, 1860 and Section 25(i)(a)/27(3)/35 of Arms Act, 1959 as well as Section 9(B)(b) of Explosives Act, 1884 was started against 12 FIR named accused persons. Police took up investigation of such case and on completion of investigation submitted charge sheet against 21 accused persons. Subsequently, the case was committed to the court of sessions.

Accordingly, on the basis of materials in the case diary, the learned Trial Court framed charges against the 21 accused persons under Sections 147/148/149/447/427/326/307/302/506/120B of the Indian Penal Code. Besides that, accused Ajbahar Khan was separately charged with the offence punishable under Section 25 (i) (a)/27(3)/35 of Arms Act, 1959. Charges were read over and explained to the accused persons to which, they pleaded not guilty and claimed to be tried. In order to substantiate the charges, prosecution examined as many as 24 ocular witnesses. In addition, prosecution also relied upon certain documentary evidences which were admitted in evidence at the trial.

The de facto complainant himself deposed as PW1. He reiterated his statement in the written complaint. He stated that Madan Khan was his father who is dead. The incident took place on June 29, 2010 at 5.00 p.m. At that time, some 50/60 persons instructed by appellant Manoranjan Patra came to his house. His father had some altercations with Manoranjan Patra. He further stated that Manoranjan Patra and his men were supporters of CPIM party whereas father of PW1 was that of TMC. Manoranjan Patra threatened the father of PW1 to leave TMC or face gunshot. When father of PW1 refused, Manoranjan ordered to kill him and on his instigation, appellant Ajbahar shot at his father. He further stated that receiving the gunshot, his father fell down. He came out of the house and found his father lying dead.

PW1 further stated that other members of his family also came out. The miscreants were trying to take away the dead body of his father whereupon, he along with others tried to stop them. At that time, Jiten Patra started firing gunshots causing injury to his uncle Safiqul Khan on his leg and to his brother brother Amzad Khan on his hand. PW1 and others hid the dead body of the father of PW1 at the house of one Hansha Khan. The two injured were taken to Bishnupur hospital from where Safiqul Khan was referred to Bankura hospital. PW1 stated that at the time of incident, Manoranjan, Jiten and Ajbahar were present and the remaining accused persons had their faces covered. He identified the appellants Manoranjan, Jiten and Ajbahar in court. He further stated that he lodged a written complaint over the incident on the following day i.e. June 30, 2010 which was scribed by Mansur Ali as per his instructions. He proved his signature on such written complaint (exhibit 1/1). Inquest was conducted over the dead body in his presence. He proved his signature on the inquest report (exhibit 2/1). He was interrogated by police.

In his cross examination, PW1 admitted that he did not write in the written complaint that the accused persons tried to take away the dead body of his father and that his father had an altercation with Manoranjan Patra and he told that if the father of PW1 did not leave TMC, he will have to die. PW1 further stated in his cross examination that he along with Halima Khatun, Sukur Khan and the son of Hansha removed the dead body of his father to the house of Hansha Khan which was situated about 200 meters away from his house intervened by 8/10 houses. He also stated that the dead body was full of blood and the wearing apparels of the persons who removed the dead body were also stained with blood. In his cross examination, PW1 also stated that on the said date prior to the incident, there was a gathering of CPM party at Library More and that of TMC at Sharif More.

The sister of the victim was examined as PW2. She stated that his brother was murdered by appellant Ajbahar while he was offering ‘Namaz’. She further stated that MLA Patra and Jiten Patra shot at Amzad and Safiqul. Other accused persons had their faces covered like Maoists whom she could not identify. PW2 also stated that the incident took place at 5 p.m. 6 years ago (from January 10, 2017). The dead body of her brother was at home and thereafter, it was taken to the house of Gulzar. She along with others encircled the dead body or it would have been taken away by the Maoists. She also stated that her brother was a member of TMC party whereas the miscreants belonged to CPM party.

In her cross examination, PW2 admitted that she first made her statement before the court that Ajbahar murdered her brother and that MLA Patra and Jiten Patra injured Amzad and Safiqul with gunshots and that she never made such statement before anyone earlier.

Injured Amzad deposed as PW3. He stated that Madan Khan was his father and was dead. CPM party members attacked his house at 5 p.m. 6 years ago and at the instructions of Manoranjan Patra, Ajbahar shot his father. The miscreants tried to take away the dead body whereupon PW3 and his family members tried to prevent. At that time, Jiten Patra fired due to which, PW3 received injury on his right hand and Safiqul Khan received gunshot injury on his right leg. PW3 further stated that he hid the dead body at the house of Gulzar, also known as Hansha. He also stated that 50/60 miscreants attacked his house. He identified the appellants in court. Others had their faces covered. He further stated that the miscreants had asked his father to leave TMC party. As he did not agree, they attacked and shot him. PW3 also stated that he was taken to Bishnupur hospital for treatment whereas Safiqul was referred to Bankura hospital. He was interrogated by police.

In his cross examination, PW3 stated that at the time of incident, he was inside his house. His father was also inside the room offering ‘Namaz’ when he was shot. His father was shot by Ajbahar from the lane situated 2/3 feet away on the south of his father’s room. His father was then offering ‘Namaz’ in a room situated on the northern side of his house. He however, could not say as to who carried the dead body to the house of Gulzar. He also stated that his cousin brothers were preventing the accused persons from taking away the dead body. At the time of incident, PW3, his four brothers, mother and aunt (pisi) were present in the house.

Wife of the victim deposed as PW4. She stated that 6 years ago at 5 p.m. CPM people murdered her husband. At the instructions of Manoranjan, he was shot dead by Ajbahar. The accused persons tried to take away the dead body. When she tried to stop them she was assaulted by iron rods. Amzad received gunshot on his hand and Safiqul on his leg. PW4 further stated that the injured persons were treated at Bishnupur hospital. She was also treated there. Her husband was shot in his stomach and his dead body was hid in the house of Hansha. She identified the assailant in court. PW4 also stated that the accused persons had told her husband to join CPM leaving TMC which he refused for which the incident happened.

The sister of the victim was examined as PW5. She stated that his brother Madan Khan was killed by the members of CPM party. He was killed by Ajbahar by gunshot. Amjad and Safiqul also received gunshot injuries. He identified the accused persons in court. PW5 also stated that the incident took place 6 years ago at 5 p.m. while his brother was offering ‘Namaz’ in the varandah. She further stated that after the gunshot injury, her brother fell down. The accused persons tried to take away the dead body. While trying to stop, the accused persons shot guns on some of her boys. Thereafter, the dead body was taken to the house of Gulzar. She also stated that her brother was killed as he refused to leave TMC. In her cross examination, PW5 stated that at the time of incident she was inside the house and the victim was offering ‘Namaz’ at the gap of the room of varandah. Ajbahar shot her brother from the lane (Gali). House of Hansha was situated at a distance of ½ a kilometre from the house of victim.

An inquest witness deposed as PW6. He proved his signature on the inquest report. He, however, did not add any value to the case of prosecution. In his cross examination, PW6 stated that he signed on the inquest report at the hospital. He could not say as to when and where, the other witnesses signed such report.

PW7 was declared hostile by the prosecution and in his cross examination by the prosecution; he denied having made any statement before the police.

PW8 is another inquest witness. He proved his signature on the inquest report. He stated that he signed on such report in the hospital at the request of police.

Police seized two letters dated July 9, 2010 and August 7, 2010 from PW9 under two various seizure lists dated July 22, 2010 and September 7, 2010. PW9 proved his signatures on such seizure lists.

The nephews of the victim deposed as PW10 and PW11. They stated that some CPM party men chased their uncle in his house and shot him dead as his uncle was a TMC member. He however, could not name the person who shot him. PW10 and PW11 were also declared hostile and in their cross examination by the prosecution, they denied having made any statement to police.

Another injured Safiqul was examined as PW12. He stated that Madan Khan was his uncle by village courtesy. He died in a scuffle between TMC and CPM parties in the village about 10 years ago (from November 19, 2019). He further stated that he also sustained bullet injury on his left leg in such incident and was admitted at Bishnupur hospital by the police. PW12 also stated that Madan Khan was a supporter of TMC party. The incident had taken place at Library More in his village where there was big gathering of both the parties.

The brother of the victim deposed as PW 13. He stated that his brother died in a scuffle between TMC and CPIM at village Rajpur 10 years ago. He further stated that his brother Madan Khan sustained bullet injuries. His nephew Safiqul also sustained bullet injury on his leg in such incident which occurred at 5:30 PM. He further stated that Madan was then at Library More. Someone opened fire and his brother sustained bullet injury and he succumbed to his injury on the spot. PW 13 also stated that CPIM supporters opened fire. His brother was a supporter of TMC and due to political rivalry between his brother and CPIM, his brother was murdered. He also stated that the incident occurred at Library More. He identified the accused persons in court. PW 13 also stated that on the date of incident, he fled away in order to save himself and came back after 1 ½ months. He stated that he was never interrogated by police in connection with the incident. PW 13 was declared hostile by the prosecution and in his cross-examination on behalf of the prosecution; he denied having made any statement before the police.

A co-villager was examined as PW 14. He stated that Madan Khan sustained bullet injury in the year 2011 and ultimately succumbed to his injury on the spot at Library More, Rajpur. He further stated that there was a scuffle between two rival political parties CPIM and TMC and in such incident someone opened fire by which Madan Khan expired at the spot. He was interrogated by police after two days of the incident. PW14 was also declared hostile. In his cross examination by the prosecution, he denied having stated before police that a scuffle took place between two political parties under the leadership of Jiten Patra, Habibur Rahama Khan, Ajijur Rahama Khan and others and in such scuffle, Madan Khan died.

Another local resident deposed as PW15. He stated that the victim Madan Khan died some 8/9 years ago in a scuffle. He, however, could not say as to which party the victim belonged or that the accused persons were present in such scuffle. This witness was declared hostile by the prosecution and in his cross examination by the prosecution; he denied having made any statement before police.

A local resident was examined as PW16. He is a hearsay witness. He heard about the incident of a scuffle between two parties at his village. However, he could not name the person from whom he heard about the incident.

PW17 and PW18 did not add any value to the case of the prosecution. Defence also did not cross examine such witnesses in respect of the incident.

One police officer was examined as PW19. He stated that on June 30, 2010, he was posted at Taldangara Police Station as Assistant Sub-Inspector of police. He further stated that as per his recollection, there was some law and order problem at village Rajpur and one person died. He went there along with other force.

A police constable was deposed as PW 20. He proved his signature on a seizure list through which a mobile was seized. He did not state anything about the incident.

An Assistant Secretary of West Bengal Legislative Assembly was examined as PW21. He knew the appellant Manoranjan Patra as an MLA. He however, could not say anything about the incident of June 30, 2010.

The first Investigating Officer of the case deposed as PW 22. He stated that on June 30, 2010 he was posted at Amdangra Outpost under Taldangara Police Station. The officer-in-charge of Taldangra police station received a written complaint and started Taldangra PS Case No. 20 of 2010 dated June 30, 2010. PW22 proved the written complaint along with endorsement thereon as well as the formal First Information Report (exhibits 1, 1/2 and exhibit 6 respectively). He was endorsed with the investigation of the case. During investigation, he visited the place of occurrence and prepared rough sketch map with index thereof. He also examined available witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure, 1973. He also conducted inquest over the dead body and prepared a report which he proved (exhibits 2). He also seized two letters produced by the then Prodhan of the Punchayat under proper seizure lists dated July 22, 2010 and September 7, 2010 which he proved. He also conducted search at the house of appellant Ajbahar and prepared a ‘Nil’ seizure list. He also visited West Bengal Legislative Assembly to verify the presence of appellant Manoranjan Patra in the Assembly and found the two letters in the register of the Assembly and collected the post mortem report (exhibit 8). Thereafter, owing to his transfer, PW22 handed over the case diary to the officer-in-charge.

In his cross examination, PW22 could not state as to from whom he received the information about the incident. He further stated that the witness Angura Bibi did not state before him that as per instructions of Manoranjan Patra, Azbahar fired at her husband.

The autopsy surgeon was examined as PW23. He stated that on June 30, 2010, he held post mortem over the dead body of one Yajur Rahman Khan @ Akram Khan and found:

PW 23 proved the post mortem report (exhibit 9).

The Officer-in-charge of Taldangara police station deposed as PW 24. He stated that on June 30, 2010 he received a written complaint from PW1 and sent the same to the police station for registration of a case. He proved his endorsement on such written complaint. He further stated that on June 29, 2010 the victim Madan Khan was murdered at Rajpur village. PW24 went and stayed there due to prevailing law and order situation. He also stated that he endorsed the investigation of the case to PW22. The second investigating officer of the case had already expired.

Upon conclusion of the evidence on behalf of the prosecution, the appellants were examined under Section 313 of the Code of Criminal Procedure. In such examination, the appellants were confronted with the evidence produced on behalf of the prosecution to which, the appellants pleaded innocence. They stated the allegations made against them to be false.

As per the case set out by the prosecution, the appellants are said to be members of CPM party. They are alleged to have attacked the house of the victim who was a TMC supporter as the victim refused to leave his party. It was also alleged that at the instruction of appellant Manoranjan Patra, appellant Ajbahar shot at the victim, which hit him. The victim died in such incident. An inquest was conducted over the dead body of victim Madan Khan followed by post mortem examination. The autopsy surgeon deposed as PW 23. During post mortem examination, he found entry and exit wounds of pellet on the dead body of the victim with blood clot in the abdominal cavity. According to the opinion of the autopsy surgeon, death of the victim Madan Khan occurred due to haemorrhagic shock. He also opined that the firearm injury was ante mortem and homicidal in nature. Therefore, on the basis of the testimony of PW23 as well as exhibit 9, it is evident that the victim Madan Khan was murdered.

As to the persons responsible for such murder, it is the case of the prosecution that some 50/60 CPIM supporters attacked the house of victim. During such attack, appellant Ajbahar fired at the victim as per the instructions of appellant Manoranjan Patra. Appellant Jiten Patra is also alleged to have fired with firearm causing injury on the hand of PW3 and on the leg of PW12. Both the injured persons are said to have been taken to Bishnupur hospital at the instance of police where they undergone treatment. PW12 is said to have been referred to Bankura hospital for better treatment.

It is not in dispute that the victim and the appellants belonged to rival political parties. The victim was a supporter of TMC whereas the appellants belong to CPIM party. A case has been made out that the appellants insisted the victim to leave TMC and join CPIM which he refused resulting in the scuffle and death of the victim out of political rivalry. According to prosecution case, the appellants came to the house of the victim at 5 p.m. there were altercations between the victim and the appellants whereupon, he was shot dead. According to PW1, he came out of his house after hearing the gunshot and found his father dead. Such evidence goes to show that at the time of incident, the victim was outside his house. To the contrary, PW2 and other witnesses have stated that at the time of incident, the victim was offering ‘Namz’ inside the house and he was shot at by the appellant from the ‘Gali’ situated beside such house. PW5, the brother of the victim however, stated that at the time of incident, the victim was offering ‘Namaz’ in the varandah and the incident took place at the varandah. On the contrary, PW14 and other witnesses had stated that the incident happened at Library More in Rajpur village. PW12 and PW13 have also stated that the incident had happened at Library More. If that be so, we are of the view that the prosecution has not been able to establish the actual place of occurrence. There appears genuine suspicion with regard to identity of place of occurrence.

PW3, the other son of the victim who received injuries in the incident, had stated that his father was offering ‘Namaz’ inside the northern room of his house and he was shot at by the appellant from the ‘Gali’ situated south of such house. If the victim was offering ‘Namaz’ in the northern room of the house, on its south there must be inside portions of the house. There could not be a gali (lane) on the south of a room situated on the northern side of the house. It has also come out in the evidence of the prosecution, that at the time incident there were at least five family members inside the house and they came out after the victim was shot. No one claimed to have seen the appellants instructing or firing the gunshots. Admittedly, PW3 was also a member of TMC. PW2, the sister of the victim, admitted in her cross examination that she for the first time deposed in court. She never made any statement prior to her deposition. In such view of the facts, the statement of PW2 is not worthy of reliance.

The prosecution has not produced any evidence which establishes that the appellant was seen carrying firearms at the relevant point of time. No firearm was recovered even during the investigation. The investigating officer has stated in his deposition that he conducted raid at the house of the appellant Ajbahar but nothing could be recovered. Consequently, he drew up a ‘nil’ seizure list. Moreover, the witnesses including PW 3 and PW12 have stated that the aforesaid witnesses received injuries by the gunshots of appellant Jiten Patra. PW4, the wife of the victim also stated that she was also assaulted and was treated at Bishnupur hospital. However, there is no evidence on record that the said appellant was carrying and used firearms.

PW3 categorically stated in his deposition that being injured by gunshots fired by Jiten Patra, he was taken by the police to Bishnupur hospital. PW12 is alleged to have initially been taken to Bishnupur hospital wherefrom he was referred to Bankura hospital. Prosecution has not produced any document to establish that PW3 and PW12 were injured by gunshots and they were treated at Bishnupur hospital. There is no whisper in the evidence of the prosecution that police had arranged for the treatment of injured persons or sent them to Bishnupur hospital. There is absolutely no evidence that PW4 was assaulted by the appellant and she received injuries in such incident. No evidence has been brought on record in support of the treatment of PW4 at Bishnupur hospital.

From the trend of cross examination of the prosecution witnesses on behalf of the appellants as well as from the examination of the appellants under Section 313 of the Code of Criminal Procedure, 1973 it appears that it is the case of the appellants that there were gathering of both the parties at different places in village Rajpur on the same day. There was some turmoil in such meetings as a result of which the victim received bullet injuries resulting in his death. It was further case of the appellants that appellant Manoranjan Patra was not present in such meeting. At the relevant date and time, he was in the West Bengal Legislative Assembly. The appellants were falsely implicated in the case out of political rivalry.

In his cross examination, PW1 admitted that there was a gathering of CPM party at Library More and that of TMC at Sharif More. PW14, a resident of village Rajpur stated in his deposition that Madan Khan sustained bullet injury in the year 2011 and ultimately succumbed to his injury on the spot at Library More, Rajpur. He had further stated that there was a scuffle between two rival political parties CPIM and TMC and in such incident someone opened fire by which Madan Khan expired at the spot.

There was no case made out in the First Information Report that the appellants ever tried to snatch away the dead body of the victim Madan Khan which PW1 and his family members refuted. Such case was made in the deposition of prosecution witnesses. Apparently, such case has been made out, since the incident had taken place at Library More and not at the house of the victim as narrated in the written complaint. For the same reason, a case has been made out that the dead body of the victim was moved to the house of Gulzar @ Hansha, in order to save it from the hands of the appellants. There appears no explanation in the evidence of the prosecution as to for what purpose, the appellants were trying to snatch away the dead body of the victim.

There is absolutely no explanation in the evidence as to what prompted the complainant party to move the dead body to the house of Hansha which was at some distance from the house of the de facto complainant or the victim intervened by several houses. Apparently house of Hansha was situated nearer to Library More where the incident occurred and inquest over the dead body of the victim was conducted at the house of Hansha. Such a case has been set out in the evidence, in order to explain the presence of dead body of the victim at the house of Hansha which was removed from Library More.

PW1 and other witnesses have stated that when the dead body of the victim was removed, it was smeared with blood. The wearing apparels of the persons who removed the dead body to the house of Hansha were also stained with blood. Prosecution has not produced such blood stained clothes of the persons who removed the dead body. There is nothing on record that police had seized the blood stained earth from the alleged place of occurrence either. Such facts also establish that the incident happened somewhere, other than the house of the victim.

We have noted hereinbefore that there is no evidence on record that the appellants were present at the alleged place of occurrence at the time of incident or that they were carrying firearms which they used causing injury to the victim as well as PW3 and PW12. No firearm was recovered during investigation. Besides that, the investigating officer seized two letters. Such letters produced on behalf of the prosecution itself, established that the appellant Manoranjan Patra was present at the West Bengal Legislative Assembly at the relevant date and time. There is absolutely nothing in the evidence of the prosecution to negate such letters. The witnesses examined on behalf of the prosecution, have stated that appellant Ajbahar fired at the victim Madan Khan at the instructions of Manoranjan Patra. The details of such instructions and the exact words used by such appellant have not been established at the trial.

To the contrary, it has come out from the prosecution evidence itself that there were two gatherings of CPIM and TMC parties at different locations in the village on the date of incident. It also transpires from such evidence that there was turmoil during such meetings and someone fired gunshot causing fatal injury to the victim. Such theory gets corroborated from the other circumstances obtaining from the evidence adduced on behalf of the prosecution. Apart from that, the incident is said to have happened at 5 p.m. on June 29, 2010 whereas, the written complaint was lodged at 10.05 hours on June 30, 2010. According to the formal First Information Report, the place of occurrence was situated just 26 kilometres from the police station. No explanation has been offered as to the delay in lodging the First Information Report.

Therefore, on the basis of discussion made hereinbefore, we are not in a position to hold that the prosecution has been able to substantiate the charges levelled against the appellants with the help of sufficient evidence. In such circumstances, we cannot sustain conviction and sentence of the appellant as imposed by the learned Trial Court.

The impugned judgment of conviction and order of sentence are set aside. Appellants are acquitted from all charges.

Consequently, CRA (DB) 22 of 2023 is allowed. Connected applications, if any shall also stand disposed of accordingly.

The appellants be set at liberty forthwith, if not warranted in connection with any other case, subject to bail bond to be executed by the appellant under Section 437A of the Code of Criminal Procedure, 1973, corresponding to Section 481 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 which shall remain valid for a period of six months.

Copy of the judgment and order along with the Trial Court Records be transmitted to the learned Trial Court forthwith.

Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis upon compliance of all formalities.

I agree.