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Form No: J(1)

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:-

The Hon’ble Justice Rajasekhar Mantha

And

The Hon’ble Justice Anuj Singh

CRIMINAL APPEAL NO. 501 OF 2016

Dwijen Mondal & Anr.

v.

The State of West Bengal.

For the Appellants: Mr. Partha Sarathi Bhattacharyya

For the State: Mr. Prasun Dutta

Mr. Subrata Roy

Hearing concluded on- 8.9.2026

Judgment pronounced on- 17.09.2026

ANUJ SINGH, J.

1. The instant appeal is preferred against a Judgment and Order dated

May 9, 2016, and May 10, 2016 respectively passed by the Additional

District and Sessions Judge, Second Fast Track Court, Jangipur,

Murshidabad, in Sessions Serial case no. 72 of 2007, Sessions Trial

Case No. 1/February/08, C.I.S. Registration No. 09/14, corresponding

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to G.R. No. 557/05, arising out of Farakka Police Station Case No. 114

of 2005, dated 15/7/2005, under Section 302/34 of the Indian Penal

Code and Section 3/4 of the Explosives Substances Act (State of West

Bengal v. Dwijen Mondal and three others). By the impugned judgment,

the learned Additional Sessions Judge convicted the Appellants under

Section 302 read with Section 34 of the Indian Penal Code and

sentenced each of them to rigorous imprisonment for life and fine.

Although five persons faced trial, the proceeding against Ramprosad

Mondal abated upon his death, and Krishna Mondal and Dinesh

Mondal were acquitted. The present appeal is therefore confined to the

sustainability of the conviction of Dwijen Mondal and Sunil Mondal.

2. The instant case was started on the basis of a written complaint of one,

Swapan Mondal (PW-1) and the defacto complainant lodged with the IC

Farakka Police Station on July 15, 2005. In his complaint, the de facto

complainant stated that on July 13, 2005, at about 4 pm, he heard from

his house that a quarrel was taking place in the verandah of his uncle,

Ganesh Mondal, on the issue of a demand for a loan made from Ganesh

Mondal. On proceeding towards the courtyard of Ganesh, the

complainant saw that Ganesh was refusing to extend the loan, and as

a result whereof, the quarrel escalated. He saw Sunil Mondal, Dwijen

Mondal, Ramprosad Mondal, Krishna Mondal, and Dinesh Mondal

having bombs in their hands, and when he attempted to intervene,

Sunil, Dwijen, and Ramprosad hurled three bombs one after another at

Ganesh. As a result, Ganesh sustained severe bleeding injuries and

collapsed. Upon hearing the explosions, the neighbours rushed to the

spot. Seeing the neighbors coming, the accused persons fled. Ganesh

was immediately taken to Beniagram Hospital. Given his severe

physical condition, he was referred to SD Hospital, Jangipur, where he

eventually succumbed to his injuries on July 14, 2005, at about 3 pm.

The complaint further records that the complaint was lodged with some

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delay, that is, on 15 July 2005, on account of disrupted communication

overnight.

3. On the basis of the aforesaid complaint, Farakka Police Station P.S.

case no. 114 of 2005, dated 15 July 2005, was registered for

investigation into the offences punishable under Section 302/34 of the

Indian Penal Code and Section 3/4 of the Explosive Substances Act

against the aforesaid five accused persons. The said case was

investigated by the police, and eventually the aforesaid five persons

were charge-sheeted upon completion of the investigation of the said

case. Thereafter, the case was committed to the Court of Sessions for

trial. On February 1, 2008, Additional Sessions Judge, 3rd Fast Track

Court, Jangipur, Murshidabad, framed charges under Section 302/34

of the Indian Penal Code and sections 3/4 of the Explosive Substances

Act against all the five accused persons, who pleaded innocence and

claimed to be tried.

4. During the trial, the prosecution examined 15 of the 17 charge-sheeted

witnesses. Including PW-1, there were seven eyewitnesses, namely,

Sukumar Mondal (PW-2), Bijayanti Mondal (PW-3, the deceased's wife),

Haren Mondal (PW4),Sanjay Mondal (PW8), Dulal Mondal, PW-5, and

Montu Mondal (PW-13). The postmortem was conducted by Dr. Ashis

Kumar Mukherjee (PW11), who opined that the death was due to

antemortem injuries because of explosion and was ‘probably homicidal’

in nature. In course of the trial, the accused Ramprosad Mondal died,

and the case against him abated.

Evidence adduced by the prosecution

5. The prosecution examined fifteen witnesses to prove its case. PW-1,

Swapan Mondal, the de facto complainant and nephew of the deceased

deposed that on July 13, 2005 at about 4 p.m, Sunil Mondal, Dwijen

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Mondal and Krishna Mondal hurled bombs at Ganesh Mondal on the

village road at Hossainpur, while Dinesh Mondal and Ramprosad

Mondal, armed with hansuas, prevented others from approaching him.

He further deposed that Ganesh was initially taken to Beniagram BPHC

and thereafter to Jangipur Hospital, where he eventually succumbed to

his injuries. The written complaint scribed by Samar Sheikh at the

dictation of PW-1, was marked as Exhibit 1. In cross-examination, PW-

1 admitted that although his house was situated nearby he had not

heard the explosions from his house. He further admitted that he

reached the police station at about noon but the complaint was lodged

at about 5 p.m. after discussion with his relatives. He also stated that

the police visited the place of occurrence two days after the incident and

did not find any bloodstains at the place of occurrence. In cross-

examination, he stated that he had heard Ganesh saying that he would

not give the money. Of some significance is his further statement that

he had disclosed the names of the assailants to the doctor at Beniagram

BPHC and also to Tanmoy Babu, a police officer of Farakka Police

Station who came to the hospital even before the FIR was lodged.

6. PW-2, Sukumar Mondal deposed that upon hearing a commotion, he

came out and saw the accused persons armed with bombs , etc.

According to him, Sunil, Dwijen and Krishna hurled bombs at Ganesh

causing him to fall. PW-2 accompanied Ganesh to Beniagram BPHC

and thereafter to Jangipur Hospital. In cross-examination he stated

that he had heard Ganesh saying that he would not give the money.

7. PW-3, Baijayanti Mondal, the wife of the deceased stated that the

accused persons had demanded dadan money from her husband on

the preceding day. According to her, on the date of occurrence the

accused entered into a scuffle with Ganesh, dragged him to a vacant

place near the house and Sunil, Dwijen and Krishna thereafter hurled

bombs at him, while Ramprosad and Dinesh stood armed with lathis.

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She raised an alarm. Thereafter neighbours came and took Ganesh to

hospital. In cross-examination, she stated that she had been cooking

inside the house immediately before the occurrence, did not accompany

Ganesh to the hospital and narrated the incident to the police only after

his death.

8. PW-4, Haren Mondal, and PW-12, Bikash Mondal also claimed to have

witnessed the occurrence. PW-4 attributed the throwing of bombs to

Sunil, Krishna and Ramprosad and stated that the place of occurrence

was the road in front of Ganpati Mondal’s house. PW-12 deposed about

the dispute over dadan money and also stated that he had witnessed

the accused throwing bombs at Ganesh. Both witnesses admitted in

cross-examination that they had never been examined by the

Investigating Officer and were narrating their version of the occurrence

before the Court for the first time.

9. PW-5, Dulal Mondal and PW-8, Sanjoy Mondal, stated that the throwing

of bombs was by Sunil, Dwijen and Krishna, and deposed that the

remaining accused persons stood with lathis. PW -8 described the

sequence of the attack by stating that Sunil threw the first bomb,

followed by Dwijen and Krishna. In cross-examination however, PW-8

admitted that he had not stated before the Investigating Officer that

Sunil had hurled the bomb.

10. PW-6 did not support the prosecution case regarding the

circumstances in which Ganesh had died. PW-7, Ganapati Mondal, was

not an eyewitness to the actual assault. He stated that after hearing

three explosions, he came out and saw the five accused running away.

In cross-examination, he admitted that he had not told the Investigating

Officer that he had seen the accused fleeing. PW-13, Montu Mondal

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similarly came out after hearing an explosion and found Ganesh lying

injured. He accompanied Ganesh to Beniagram BPHC and thereafter to

Jangipur Hospital.

11. PW-11, Dr. Asis Kumar Mukherjee conducted the post-mortem

examination on July 15, 2005. He found bruises, abrasions and

lacerations over the left forearm and elbow, a large injured area over

the left flank, multiple haematomas over the left kidney, torn mesentery

of the intestines and collection of blood in the peritoneal cavity. The

post-mortem report was marked as Exhibit 5. In his opinion, death was

caused by shock resulting from ante-mortem injuries, ‘most probably’

caused by explosives. In cross-examination, he stated that the deceased

had received treatment, including saline and blood transfusion, before

the post-mortem examination.

12. The remaining witnesses were formal witnesses. PW -9, Home

Guard Shibram Majumder, took the dead body to the hospital morgue

and identified it before the doctor. PW-10, Sub-Inspector Anil Kumar

Chatterjee, received the written complaint and prepared the formal FIR,

marked as Exhibit 4. PW-14, ASI Pijush Mistry, conducted the inquest,

prepared the inquest report and dead body challan, marked as Exhibits

2 and Exhibit 3 respectively. In cross-examination, PW-14 admitted

that apart from Dwijen Mondal the names of the other accused were

not recorded in the inquest report.

13. PW-15, Manik Lal Dey took over the investigation on July 4,

2006. He completed the investigation and submitted the charge-sheet

under Sections 302/34 IPC and Sections 3 and 4 of the Explosive

Substances Act. He admitted that he had neither visited the place of

occurrence nor examined any witness and had only completed the

formalities before submitting the chargesheet.

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Documentary exhibits adduced by the prosecution

14. The written complaint lodged by PW -1, Swapan Mondal at

Farakka Police Station on July 15, 2005 was scribed by Samar Sheikh

at his dictation and was marked as Exhibit 1, while the receiving

endorsement on the same was proved by PW -10, Sub-Inspector Anil

Kumar Chatterjee and marked as Exhibit 1/1. On the basis of the

complaint, PW-10 prepared and signed the formal First Information

Report which was marked as Exhibit 4.

15. PW-14, ASI Pijush Mistry conducted the Surathal over the body

of Ganesh Mondal and prepared the inquest report which was marked

as Exhibit 2 in the presence of Kartick Mondal, Sukumar Mondal and

Shibu Mondal. He admitted that except for Dwijen Mondal, the names

of the other accused were not recorded therein. The dead body challan

prepared by him for sending the body to the Jangipur S.D. Hospital

morgue was marked as Exhibit 3. Pursuant thereto PW-9, a Home

Guard took the dead body to morgue and identified it before the doctor.

PW-11, Dr. Asis Kumar Mukherjee proved the postmortem report which

was marked as Exhibit 5. The postmortem recorded several injuries

over the left forearm, elbow and flank, multiple haematomas over the

left kidney, torn intestinal mesentery and profuse blood in the

peritoneal cavity. He opined that death resulted from shock arising out

of ante-mortem injuries most probably caused by the explosion of

explosives.

Findings of the Trial Court

16. By the judgment and order dated May 9 and 10, 2016,

respectively, the trial Court considered the evidence of 15 prosecution

witnesses, the defence case regarding delay in lodging the FIR,

contradictions regarding the identity of the accused persons, non

seizure of the deceased’s clothes and bomb remnants, and non -

examination of the Investigating Officer and rejected the same. The Trial

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Court held that the delay had been satisfactorily explained and that the

discrepancies were not of such a nature as to dilute the otherwise

credible oral and medical evidence.

17. The Trial Court found that PW-1, PW-2, PW-3, PW-5 and PW-8

had consistently deposed the bombs were hurled by Sunil Mondal and

Dwijen Mondal, whereas the evidence regarding the role of Krishna

Mondal and Dinesh Mondal was not sufficient to establish either a

specific overt act or common intention. Krishna Mondal and Dinesh

Mondal were, therefore given the benefit of doubt and acquitted. The

Trial Court further acquitted all the accused of the charges under

Sections 3 and 4 of the Explosive Substances Act in view of the non-

seizure of any explosive substance either from the accused or from the

place of occurrence.

18. The Trial Court ultimately held that Sunil Mondal and Dwijen

Mondal, acting in furtherance of their common intention, had hurled

bombs at Ganesh Mondal and thereby caused his death. Each appellant

was accordingly convicted under Section 302 read with Section 34 IPC

and sentenced to rigorous imprisonment for life and a fine of Rs.

10,000/-, with rigorous imprisonment for a further period of one year,

in default of payment of fine. The period of detention already undergone

was directed to be set off in accordance with law.

Analysis of evidence

The homicidal nature of death

19. Swapan Mondal, PW1 stated that on July 13, 2005 at about 4pm

he heard some quarrel going on with Ganesh Mondal along with some

other persons relating to demand of loan. He saw appellants having

bomb in their hand and one after another they hurled three bombs on

the deceased. He was taken to the hospital but on 14.07.05 at about 3

pm Ganesh died. Thereafter, the post -mortem examination was

conducted, and the medical evidence records injuries on the person of

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the deceased and opined that the death was “most probably” homicidal

and resulted from shock arising out of injuries sustained by him. The

medical evidence is hence consistent with the prosecution case that the

deceased suffered serious injuries in the alleged bomb attack and

subsequently died as a result thereof.

20. The defense has placed considerable reliance on the expression

“most probably” mentioned in the medical report, which cannot be read

in isolation, as it requires expression of opinion on the nature and cause

of death from the injuries found during examination. The question as

to whether the death was homicidal was required to be determined by

the court upon a cumulative assessment of the medical and oral

evidence. In the present case, the medical evidence does not contradict

the prosecution version. On the contrary, the medical evidence of the

existence of injuries and the resulting death substantially corroborate

to what the eyewitnesses who deposed about the fight which led to the

bomb attack.

21. It is trite law that the value of medical evidence is ordinarily only

corroborative. In Solanki Chimanbhai Ukabhai v. State of Gujarat,

(1983) 2 SCC 174, in para 13, the Supreme Court held that:

“13. Ordinarily, the value of medical evidence is only corroborative.

It proves that the injuries could have been caused in the manner

alleged and nothing more. The use which the defence can make of

the medical evidence is to prove that the injuries could not possibly

have been caused in the manner alleged and thereby discredit the

eye-witnesses. Unless, however the medical evidence in its turn

goes so far that it completely rules out all possibilities whatsoever of

injuries taking place in the manner alleged by eyewitnesses, the

testimony of the eye-witnesses cannot be thrown out on the ground

of alleged inconsistency between it and the medical evidence.”

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22. In the case at hand, the post-mortem report shows that the

lacerations were intimately mixed with each other there was torn

intestine, and profuse peritoneal haemorrhage. This shows that there

is no conflict between the oral testimony and the medical evidence,

rather the medical evidence is entirely compatible, and corroborate the

oral evidence of a close-range bomb explosion. This goes on to establish

and prove the fact that the death of Ganesh Mondal was homicidal in

nature, and not accidental or suicidal.

The identity of the accused

23. The accused are Sunil Mondal and Dwijen Mondal, who hurled

bombs at the deceased, are established by the statements of eyewitness

PW-1, PW-2, PW-3, PW-5, and PW-8. They have identified both the

accused in dock and have consistently deposed that it was Sunil,

Dwijen and Krishna Mondal who hurled bombs at Ganesh Mondal. PW -

3, the widow of the deceased, has further stated the motive behind the

incident. That a day before the incident, the accused demanded loan

from the deceased, and upon refusal to grant it, on the date of the

incident, they dragged the deceased to a vacant place near the house

and then threw bombs, aiming at the deceased.

24. In Dalip Singh v. State of Punjab, AIR 1953 SC 364, in para

24, the Supreme Court had held that –

“24. A witness is normally to be considered independent unless he

or she springs from sources which are likely to be tainted and that

usually means unless the witness has cause, such as enmity

against the accused, to wish to implicate him falsely. Ordinarily, a

close relative would be the last to screen the real culprit and falsely

implicate an innocent person. It is true, when feelings run high and

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there is personal cause for enmity, that there is a tendency to drag

in an innocent person against whom a witness has a grudge along

with the guilty, but foundation must be laid for such a criticism and

the mere fact of relationship far from being a foundation is often a

sure guarantee of truth. However, we are not attempting any

sweeping generalisation. Each case must be judged on its own

facts. Our observations are only made to combat what is so often

put forward in cases before us as a general rule of prudence. There

is no such general rule. Each case must be limited to and be

governed by its own facts.”

25. In the present case, the accused has not laid down any such

foundation, either through cross-examination or otherwise, that are

falsely being implicated by the witnesses. There is no evidence adduced

to suggest that PW-1 or PW-3 had any animus against Sunil Mondal or

Dwijen Mondal to falsely accuse them of the charges. The fact that the

witnesses have not been specific about Krishna Mondal and Dinesh

Mondal in their deposition, itself negates that there was any design of

false implication of the appellants.

The direct oral evidence of the assault

26. The eyewitnesses have consistently deposed that the accused

persons hurled bombs at the deceased leading him to sustain severe

bleeding injuries and fall to the ground, that the accused fled when

neighbours came to the scene by the sound of the explosions, and that

the deceased was initially taken to Beniagram Hospital and thereafter

referred to S.D. Hospital, Jangipur, where he succumbed to his injuries.

In Vadivelu Thevar v. State of Madras , AIR 1957 SC 614 , the

Supreme Court classified oral evidence into three categories namely,

wholly reliable, wholly unreliable, and neither wholly reliable nor wholly

unreliable. Section 134 of the Evidence Act lays down no particular

number of witnesses for proof of a fact. It is the quality, and not the

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quantity, of evidence that is determinative. Tested against these

principles, the evidence of PW-1, PW-2, PW-3, PW-5 and PW-8 gives

clinching evidence relating to the assault by the Appellants and upon

scrutiny inspires confidence.

The defence case

A. Delay in lodging the FIR

27. The Learned Advocate for the appellants has strenuously argued

that the delay of two days between the occurrence on 13.07.2005 and

the lodging of the FIR on 15.07.2005, and then the further gap of some

hours between the complainant’s arrival at the police station and the

actual recording of the complaint must be seen fatal to the prosecution

case.

28. The general principle of law with regard to delay in lodging of FIR

is that an unreasoned and unexplained delay in lodging an FIR can be

fatal to the case of prosecution. It is the case of the prosecution that the

deceased was not immediately available for the recording of a first hand

account of the incident, because he had to be removed for urgent

medical treatment. Firstly to Beniagram Hospital, and thereafter to SD

Hospital, Jangipur, situated at about sixteen kilometres from the Police

Station, where he succumbed to his injuries on July 14, 2005. It has

further emerged from the complainant’s evidence that intimation of the

death of the deceased did not reach the village until the following

morning as the communication s were disrupted, and thus the

complaint the lodged the same day at 16:15 hours.

29. Similar to the case at hand, in Ravi Kumar v. State of Punjab,

Criminal Appeal No. 377 of 2005, decided on March 4, 2005, the

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injured was taken first to a Primary Health Centre, thereafter to the

Civil Hospital and ultimately to the P.G.I. where he succumbed to his

injuries. In those circumstances, the Supreme Court held that the delay

in lodging the FIR was satisfactorily explained, since the immediate

concern of the family was to secure medical treatment and save the life

of the injured.

30. The circumstances of the present case are not different.

Immediately after the occurrence, Ganesh Mondal was taken for

treatment, first to Beniagram Hospital and thereafter to S.D. Hospital,

Jangipur, where he subsequently died. The evidence further indicates

that information regarding his death reached the village only on the

following morning, whereupon the complaint was lodged on the same

day. If this sequence is seen, the delay stands reasonably explained and

does not by itself render the prosecution case unreliable.

B. Alleged contradictions

31. Learned Advocate for the appellants has highlighted the following

contradictions: (a) that the written complaint named Sunil, Dwijen and

Ramprosad as the three who hurled the bombs, whereas the

complainant himself in his evidence named Sunil, Dwijen and Krishna;

(b) that PW-2, PW-3 and PW-5 also named Sunil, Dwijen and Krishna,

whereas PW-4 named Sunil, Krishna and Ramprosad; (c) contradictions

as to whether the occurrence took place on the road, near the house,

or at a vacant place near the house; and (d) that several witnesses could

not recall the exact date, month or year of the incident when deposing

year later. It has been contended that these are not ordinary lapses of

memory but material contradictions going to the very identity of the

accused.

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32. It is trite law that there are always normal and minor

discrepancies found in the deposition of witnesses, and such minor

variations are considered to be hallmark of truth.

33. In State of Rajasthan v. Kalki, (1981) 2 SCC 752, in para 8,

the Supreme Court held that –

“8. … In the depositions of witnesses there are always normal

discrepancies however honest and truthful they may be. These

discrepancies are due to normal errors of observation, normal errors

of memory due to lapse of time, due to mental disposition such as

shock and horror at the time of the occurrence, and the like. Material

discrepancies are those which are not normal, and not expected of a

normal person…”

(Emphasis supplied)

34. Moreover, in State of Uttar Pradesh v. MK Anthony, (1985) 1

SCC 505, in para 10, the Supreme Court held that –

“10. While appreciating the evidence of a witness, the approach must

be whether the evidence of the witness read as a whole appears to

have a ring of truth. Once that impression is formed, it is undoubtedly

necessary for the court to scrutinise the evidence more particularly

keeping in view the deficiencies, drawbacks and infirmities pointed

out in the evidence as a whole and evaluate them to find out whether

it is against the general tenor of the evidence given by the witness

and whether the earlier evaluation of the evidence is shaken as to

render it unworthy of belief. Minor discrepancies on trivial matters not

touching the core of the case, hyper-technical approach by taking

sentences torn out of context here or there from the evidence,

attaching importance to some technical error committed by the

investigating officer not going to the root of the matter would not

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ordinarily permit rejection of the evidence as a whole… Even honest

and truthful witnesses may differ in some details unrelated to the

main incident because power of observation, retention and

reproduction differ with individuals.”

(Emphasis supplied)

35. We are not impressed with the argument of the Learned Advocate

for the appellants. In our view, based on the analysis of the

aforementioned precedents, the contradictions, as argued by the

appellants, are minor contradictions, and do not shake the testimonies

of the witnesses as regards to the core of the matter, and do not warrant

rejection of the otherwise cogent, consistent and reliable testimonies of

the witnesses. The eyewitnesses (PW-1, PW-2, PW-3, PW-5, and PW-8)

consistently named the appellants in their evidence. Hence, the core of

the matter with regards to these two appellants was intact throughout.

36. Now, the contradictions as to whether the third accused was

Krishna Mondal or Ramprosad Mondal, alongside the consistent names

of Sunil and Dwijen, is something that does not affect the case at hand.

Moreover, due to this discrepancy in the third accused’s name, the trial

court, correctly in the view of this Court, extended the benefit of doubt

to Krishna Mondal since his name did not appear in the original written

complaint and the overt act attributed to him was not uniform across

the witnesses. Nonetheless, Sunil Mondal and Dwijen Mondal were

named with no such inconsistency by five out of seven witnesses who

were examined on such point. Hence, the consistency as to the two

convicted appellants cannot be diminished because of the contradiction

concerning the third co-accused.

37. Next contradiction as to the precise spot of occurrence that

whether it happened on the road, near the courtyard, or at a vacant

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place a short distance from the house of the deceased, falls well within

the class of discrepancy contemplated in M.K.Anthony (supra), since all

the witnesses place the incident within the same small physical area,

namely Ganesh Mondal’s home opening onto the village road. No

witness has described a location in such a way that creates doubt in

our mind as to the place of occurrence.

38. Similarly, the inability of PW-4, PW-5, PW-12 and PW-13 to state

the precise date, month or year of an occurrence they witnessed several

years prior to their deposition is not that important and does not detract

from their consistent evidence on the fact and manner of the assault

itself.

C. Non-seizure of the remnants of the bomb and the wearing apparel

of the deceased, and non-examination of the original investigating

officer.

39. It is not in dispute that the investigating agency did not seize the

remnants of the explosive or the wearing apparel of the deceased during

the investigation, and that the Investigating Officer, who initially took

up the investigation, Sub-Inspector Tanmoy Ghosh, was not examined,

the prosecution having relied rather on the evidence of PW-15, who took

over the investigation at a later stage and filed the charge-sheet. These

are, without doubt, lapses on the part of the investigating agency, and

this Court does not wish to be understood as condoning them; however,

it is a well-settled principle of law that a defective or negligent

investigation is not, by itself, a ground for acquittal of the accused

where there exists credible evidence against the accused. In Karnel

Singh v. State of Madhya Pradesh, (1995) 5 SCC 518, in para 5, the

Supreme Court held that –

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“5. … In cases of defective investigation the court has to be circumspect

in evaluating the evidence but it would not be right in acquitting an

accused person solely on account of the defect; to do so would

tantamount to playing into the hands of the investigating officer if the

investigation is designedly defective...”

40. Further, in Ram Bali v. State of Uttar Pradesh, (2004) 10 SCC

598, in para 12, the Supreme Court placed reliance on Karnel Singh

(supra) and held that it is not correct to acquit an accused solely due

to defective investigation.

41. With respect to the issue of non-examination of the Investigating

Officer, it has been held by the Supreme Court in Rajesh Yadav v.

State of Uttar Pradesh, (2022) 12 SCC 200, para 27 , that the

evidence of Investigating Officer is not indispensable, and even

assuming that the IO has not deposed before the court, an accused is

not entitled to acquittal, when other incriminating evidence exists.

Furthermore, in Lahu Kamlakar Patil v. State of Maharashtra, (2013)

6 SCC 417, in para 18, the Supreme Court observed that –

“18. …It is an accepted principle that non-examination of the

investigating officer is not fatal to the prosecution case. In Behari

Prasad v. State of Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] ,

this Court has stated that non-examination of the investigating officer

is not fatal to the prosecution case, especially, when no prejudice is

likely to be suffered by the accused. In Bahadur Naik v. State of

Bihar [(2000) 9 SCC 153 : 2000 SCC (Cri) 1186] , it has been opined

that when no material contradictions have been brought out, then

non-examination of the investigating officer as a witness for the

prosecution is of no consequence and under such circumstances, no

prejudice is caused to the accused. It is worthy to note that neither

the trial Judge nor the High Court has delved into the issue of non-

examination of the investigating officer…”

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42. The evidence does not disclose independent acts committed

separately by each accused. Sunil and Dwijen went to the deceased

together, armed themselves with the same lethal means, selected the

same victim and successively hurled bombs at him in the course of one

continuous assault. Their concerted conduct before, during and after

the occurrence establishes that the criminal acts attributed to them

were committed in furtherance of a shared intention to cause the death

of Ganesh Mondal and hence their conviction under section 34 IPC is

also sustainable.

43. Thus, since, in the present case, there exist other credible

evidence, the defective investigation by the investigating agency and

non-examination of the first Investigating Officer is not fatal to the case

of prosecution, and the accused cannot be acquitted on the basis of

these factors. We are, therefore, of the view that these lapses, while

regrettable, do not, on the facts of the matter in hand, undermine the

credibility of the prosecution’s story.

44. We accordingly find no ground to interfere with the conviction of

the appellants under Section 302 read with Section 34 IPC or with the

sentence imposed upon them. The appeal is, therefore, dismissed, and

the judgment of conviction dated May 9, 2016 and the order of sentence

dated May 10, 2016 are affirmed.

45. The period of detention already undergone by the appellants in

connection with the present case shall be set off in accordance with

Section 428 CrPC. The appellants who are in custody, shall continue to

serve the sentence in accordance with law.

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46. Let the lower court records, together with a copy of this

judgment, be transmitted to the learned Trial Court forthwith for

information and necessary action.

47. Urgent certified copy of this judgment, if applied for, shall be

made available to the parties upon compliance with due formalities.

I agree.

(Rajasekhar Mantha, J.) (Anuj Singh, J.)