IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

CRA (DB) 314 of 2025

With

CRAN 1 of 2025

Mobaidul Hossain @Islam @ Sk. Mobaidul Islam

Vs.

The State of West Bengal

With

CRA(DB) 278 of 2025

With

CRAN 1 of 2025 and CRAN 2 of 2025

Barun Diger & Ors.

Vs.

State of West Bengal

With

CRA(DB) 279 of 2025

With

CRAN 1 of 2025 and CRAN 2 of 2025

Gopal Diger @ Diger & Ors.

Vs.

The State of West Bengal

Before: The Hon’ble Justice Arijit Banerjee

&

The Hon’ble Justice Apurba Sinha Ray

Page 2 of 17

For the Appellants in

CRA (DB) 314 of 2025

: Mr. Sabir Ahmed, Adv.

Mr. Dhiman Banerjee, Adv.

Mr. Amit Singh, Adv.

For the State in CRA

(DB) 314 of 2025

: Mr. Debasish Roy, ld. P.P.

Ms. Amita Gour, Adv.

For the appellants in

CRA (DB) 278 of 2025

and CRA (DB) 279 of

2025

Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.

Mr. Rabi Sankar Chattopadhyay, Adv.

Mr. Uday Sankar Chattopadhyay, Adv.

Mr. Suman Chatterjee, Adv.

Mr. A. R. Bhattacharya, Adv.

Ms. Trisha Rakshit, Adv.

Mr. S. Rakshit, Adv.

Ms. B. Chakraborty, Adv.

Ms. S. Parveen, Adv.

For the State in CRA

(DB) 278 of 2025 and

CRA (DB) 279 of 2025

Mr. Debasish Roy, ld. P.P.

Ms. Anasuya Sinha, Adv.

Ms. Nandini Chatterjee., Adv.

Reserved on : 22.01.2026

Judgment on : 12.03.2026

Apurba Sinha Ray, J.:-

1. The above criminal appeals have been filed by the appellants against

the judgment and order of conviction dated 23.06.2025 and order of

sentence dated 24.06.2025 passed in connection with the S.T. Case No.

01 (07) 2016 (S.C. Case No. 95 of 2015) of the Learned Court of

Additional District and Sessions Judge, 1

st

Court, Arambagh at Hooghly

on the grounds inter alia that the learned Trial Judge did not consider

the evidence on record in proper perspective and the above judgment

was passed on the basis of deposition of witnesses who were highly

interested parties. Although the incident of murder of one Sk.

Naimuddin allegedly took place due to political rivalry, the learned Trial

Page 3 of 17

Judge has solely relied upon the deposition of politically interested

witnesses. Moreover, although there was an allegation that most of the

appellants were carrying firearms at the time of incident and they

opened fire on the air, neither any fire arm nor any empty cartridges

were recovered from the alleged place of occurrence. No ballistic report

was submitted in support of the prosecution case. Furthermore,

although in the inquest report the witnesses did not name the actual

assailants, the present appellants were entangled in the relevant case

due to political rivalry.

2. Md. Samim, Learned Advocate appearing for one of the appellants

namely Mobaidul Hossain @ Islam has argued that there were several

contradictions in the prosecution case in respect of the person who

actually shot at the deceased. No eyewitness implicated the present

appellant Mobaidul Hossain. But without taking into consideration the

materials on record, the Learned Trial Judge has convicted Mobaidul

Hossain alongwith others. Mr. Samim has further submitted that there

was no seizure of firearms or anything from the appellant Mobaidul.

The blood stained nomination paper was seized after almost one year

and eight months of the alleged incident from the house of the

deceased. Mr. Samim has further argued that no bomb or remnants of

a bomb was seized either from the place of occurrence or from the

possession of the appellant Mobaidul.

3. Mr. Samim has relied upon several judgments in Meharaj Singh vs.

State of UP reported in (1994) 5 SCC 188, Mohd. Muslim vs. State of

Uttar Pradesh (Now Uttarakhand) reported in (2023) 7 SCC 350,

Page 4 of 17

Zainul vs. State of Bihar reported in (2025) SCC Online SC 2152 , ,

Masalti and Ors. vs. State of Uttar Pradesh reported in (1964) SCC

Online SC 30.

4. The Learned Counsel appearing for the other appellants adopted the

arguments of Mr. Samim and Mr. Bhattachryya who had made his

detailed submission in connection with CRA (DB) 272 of 2025 Baladeb

Paul @ Baldeb Paul vs. State of West Bengal and Ors.

5. We have considered the submission of the learned Counsel of the

above appellants and also taken into consideration the reported

judgments as cited from the side of the aforesaid appellants.

6. From the deposition of PW 1 it is found that she came to know about

the presence of the above appellants from one Kajal Roy who was

examined as PW 8. Therefore, PW 1 did not see any of the appellants

with her own eyes in committing the crime. PW 2, Ashok Kumar Roy

and PW 4 Kanailal Dey were declared hostile. PW 3 Sk. Harun Ali

Rashid, brother of the deceased was also informed about the presence

of the appellants at the time of occurrence by the said PW 8 Kajal Roy.

However, in his deposition PW 3 has stated that after receiving the

information he went to the spot and found that one Baldeb Pal was

with a firearm in hand in running condition and he also found one

Saheb Pal was firing and Sahadeb Pal was roaming on the spot with

Lathi in hand. He further deposed that one Mobaidul Islam was present

or roaming on the spot with a bomb in hand. Santosh Pandit, Tapas

Khan, Swapan Roy, Tarun Kanti Mondal, Gajan Paramanik, Sk. Abdul

Safique, Chowdhury Kamrul Alam, Chowdhury Mehebub Hossain ,

Page 5 of 17

Chowdhury Akhtarul Haque and others were present there with

firearms etc. He also deposed that they were also trying to throw bombs

towards the public to create fear amongst them. PW 5 Tarapada Roy

was declared hostile whereas PW 6 Sk. Sairaf Ali deposed that on the

relevant date when they were filling up the form, some miscreants

namely Baladeb Paul, Saheb Pal, Santosh Pal, Tapas Kha, Swapan Roy,

Asit Ghosh, Santosh Pandit, Akhtar Chowdhury (Chowdhury Akhtarul

Haque), Asit Singha Roy, Gajan Paramanik, Nakul Diger, Sitaram Pal,

Tapan Chowdhury, Chowdhury Kamrul Alam suddenly came to the

spot and attacked them. In his cross-examination he has stated that

Baladeb Paul, Saheb Pal, Nakul Diger, Tapas Khan, Santosh Pandit

were with revolver and rest were with lathi, tangi, etc. and Baladeb Paul

shot Naimuddin and others were firing in the air.

7. PW 7 Samir Malik has stated that when Kajal Roy and Naimuddin were

filling up the election form suddenly Baladeb Paul, Saheb Pal, Sahadeb

Pal, Swapan Roy, Asit Ghosh, Santosh Pandit, Tapas Khan, N akul

Diger, Barun Diger, Pannalal Mondal, Akhtarul Haque Chowdhury,

Kamrul Alam Chowdhury, Mehebub Chowdhury, Gajon Pramanik

attacked them with fire weapons, gun lathi, rod tangi etc. and Baladeb

Paul shot Sk. Naimuddin.

8. PW 8 Kajal Roy has deposed that when they were engaged in filling up

the nomination papers suddenly about 50 persons surrounded them

and started assaulting them. They all had firearms, lathi, tangi, bombs

etc. in hand. Baladeb Paul fired at Naimuddin at the left side of his

neck. Apart from that Sk. Abdul Safique, Nakul Diger, Saheb Pal,

Page 6 of 17

Sahadeb Pal, Tapas Khan, Swapan Roy, Sitaram Pal, Asit Singha,

Santosh Pandit, Chowdhury Mehebub Hossain, Chowdhury Kamrul

Alam@Topa, Chowdhury Akhtarul Haque@Akhtar, Barun Diger, Asit

Ghosh were also carrying fire arms in their hands.

9. PW 9 Fatik Mallik deposed that on the relevant date around 10.30 a.m.

he was in the market and suddenly he heard a sound and found some

persons were loitering or running hither and thither and also found

that Baladeb Paul was shouting with a pistol in his hand as “ kaj

hoyegache, kaj hoyegache” and also found that Naimuddin was lying on

the ground with bleeding injuries. He also found Saheb Pal and Nakul

Diger were helping Baladeb Paul.

10. PW 10 Sk. Nausher Ali deposed that he found four persons with lathi

and they were Saheb Pal, Tapas Kha, Nakul Diger, Barun Diger who

were with Baladeb Paul.

11. PW 11 Chowdhury Ajahar Ali deposed that he found Baladeb Paul

firing at Naimuddin at the backside of his head. At some distance some

other persons like Saheb Pal, Sahadeb Pal, Barun Diger, Nakul Diger,

Asit Ghosh, Tapas Kha and others were rejoicing with weapons in their

hands.

12. From the deposition of PW 6 it appears that Baladeb Paul shot

Naimuddin and the concerned appellants were present. Some of the

witnesses have deposed that they were with firearms. PW 6 being one of

the alleged eye-witnesses has named 14 persons including one Baladeb

Paul whereas PW 7 disclosed the name of 13 persons who accompanied

the principal accused Baladeb Paul. It is also found that PW 8, another

Page 7 of 17

vital and important witness, has named 14 accused persons apart from

Baladeb. Another eyewitness PW 9 has named only two appellants

namely Saheb Pal and Nakul Diger who were allegedly helping Baladeb.

PW 10 saw Saheb Pal, Tapas Kha, Nakul Diger and Barun Diger wit h

lathi whereas PW 11 Chowdhury Ajahar Ali has stated that Saheb Pal,

Sahadeb Pal, Barun Diger, Nakul Diger, Asit Ghosh, Tapas Kha and

others were enjoying and running towards Naimuddin with weapons in

their hands. The record shows that not a single fire arm was recovered

from the said accused persons inspite of there being sufficient

opportunity to recover and seize the said fire arms from the possession

of the said accused persons. It is also found from the depositions of

some if the witnesses that the accused were firing in the air. If that be

so, there must have been some empty cartridges in the place of

occurrence but not a single empty cartridge was seized by the

Investigating Officer from the alleged place of occurrence.

13. Although the present appellants were convicted and sentenced to

suffer life imprisonment, one Baladeb Paul was sentenced to death. In

view of such a sentence of death, a Death Reference being no. 08 of

2025 was considered by this Court alongwith the Criminal Appeal being

no. CRA 272 of 2025 filed by the said death row convict Baladeb Paul

against the judgment of conviction and death sentence. Today this

Court by a judgment and order dated 12.03.2026 has concluded that

the prosecution case had serious loopholes and after considering all the

materials on record, the said death row convict was acquitted and the

sentence of death in connection with Death Reference no. 08 of 2025

Page 8 of 17

was not confirmed. CRA 272/2025 was allowed, and the judgment and

conviction was set aside so far as the said convict is concerned.

14. When the principal accused Baladeb Paul has been able to show that

there are several lacuna in the prosecution case, we find that the

present petitioners are also entitled to the same benefit. In its judgment

dated 12.03.2026 this Court has pointed out several loopholes and they

are as follows:-

i) “No independent witness supported the prosecution case; the

prosecution has relied upon some interested witnesses in

convicting the accused Baladeb Paul.

ii) No recovery of the weapon was done by the investigating officer.

iii) The gun/revolver which the convict Baladeb Paul was alleged to

have used at the time of commission of offence was neither

seized nor sent to forensic laboratory for analysis to pin point that

the said convict made the gunshot upon the victim Naimuddin.

iv) The contents of the inquest report were withheld by the

prosecution and were not made admissible in the evidence.

v) The doctor who recovered the bullet from the body of the

deceased had deposed that the bullet shown to him during trial

was not recovered from the body of the victim.

vi) The FIR was sent to the concerned police station more than three

hours after the incident via a relative of the defacto complainant.

vii) PW19, the second investigating officer has stated that none of the

witnesses in the inquest report name Baladeb Paul as the

assailant of the deceased. It is not clear if the witnesses to the

Page 9 of 17

said inquest report knew that Baladeb Paul fired Naimuddin from

the back side, what prevented them from narrating the same

before the concerned officer conducting the inquest report.

viii) No injury report for the assault upon the witnesses apart from the

deceased or any weapon in that regard was seized by the

investigating officer.

ix) The GDs mentioned in the formal FIR are not brought on record to

lend support to the prosecution case,

x) Four local witnesses declined to support the prosecution case,

xi) No ballistic report was received during the trial.

xii) The contents of statements under Section 164 Cr.P.C. were not

admitted in evidence but the learned Judge relied upon their

unexhibited contents.

xiii) Non-production of Judicial Magistrates who recorded the

statements under Section 164 Cr.P.C.”

15. The learned Trial Judge at page no. 54 of his judgment has explained

as to why the learned Trial Judge did not consider non -seizure of

offending weapon as a fatal blow to the prosecution case. According to

him all the prosecution witnesses from PW 1 to PW 11 deposed that

they saw Baladeb Paul and other accused persons with fire arms and

other offending weapons in their hands at the time of incident and

“such clear, consistent, reliable and cogent evidence of such witnesses

does not require the offending weapon to be seized by the police as

such weapon which has been used in the commission of the crime and

as such this is not fatal to the prosecution.”

Page 10 of 17

16. We have already discussed that it is wrong appreciation of evidence

on the part of the learned Trial Judge that “PW 1 to PW 11 deposed that

they saw Baladeb Paul and other accused persons with fire arms at the

time of incident and such witnesses clearly deposed that Baladeb Paul

shot the victim on his head and other accused persons were firing in the

air after Baladeb Paul shot the victim”. From the evidence on record it

transpires that PW 1, PW 3, PW 5, PW 9, PW 10 did not say that they

saw Baladeb Paul shoot Naimuddin and other accused were firing on

the air after Baladeb Paul shot Naimuddin. PW 2 and PW 4 wer e

declared hostile. Therefore, it is incorrect to say that all the PWs

including PW 1, PW 2, PW 3, PW 4, PW 5, PW 9 and PW 10 saw the

convict Baladeb Paul to shoot Naimuddin and the other accused were

firing in the air. At the time of the incident the said witnesses were not

present as per their deposition on record. In spite of such

circumstances, the learned Trial Judge has made the wrong

observation. The remaining witnesses namely PW 6, PW 7, PW 8, PW 11

have supported the prosecution case. PW 6, Sairaf Ali has disclosed the

names of 14 accused persons namely Baladeb Paul, Saheb Pal, Santosh

Pal, Tapas Khan, Swapan Roy, Asit Ghosh, Santosh Pandit, Akhtar

Chowdhury (Chowdhury Akhtarul Haque), Asit Singha Roy, Gajan

Paramanik, Nakul Diger, Sitaram Pal, Tapan Chowdhury, Chowdhury

Kamrul Alam. He has further stated that Baladeb Paul, Saheb Pal,

Nakul Diger, Tapas Khan, Santosh Pandit were with revolver and rest

were with lathi, tangi, etc. and Baladeb Paul shot Naimuddin and

others were firing in the air. PW 7, Samir Mallick has named 14

Page 11 of 17

persons as their attackers. They are Baladeb Paul, Saheb Pal, Sahadeb

Pal, Swapan Roy, Asit Ghosh, Santosh Pandit, Tapas Khan, Nakul

Diger, Barun Diger, Panna Lal Mondal, Akhtar Chowdhury, Kamrul

Alam Chowdhury, Mehebub Chowdhu ry, Gajon Pramanik attacked

Sourav Mondal, Samir Mallick (PW 7), Sk. Nausar Ali, Azad

Chowdhury, Sitaram Panja by fire weapons, gun, lathi, rod tangi etc.

and he further stated Baladeb Pal shot Sk. Naimuddin.

17. PW 8 has named 14 persons as accused apart from Baladeb Paul and

they are Sk. Abdul Safik, Nakul Diger, Saheb Pal, Sahadeb Pal, Tapas

Khan, Swapan Roy, Sitaram Pal, Asit Singha, Santosh Pandit,

Chowdhury Mehebub Hossain, Chowdhury Kamrul Alam@Topa,

Chowdhury Akhtarul Haque@Akhtar, Barun Diger, Asit Ghosh. They

were carrying fire arms in their hands and firing in the open air. PW 9

Fatik Mallick has named only 3 accused namely Saheb Pal, Nakul Diger

and Baladeb Paul. According to him Saheb Paul and Nakul Dig er were

helping Baladeb Paul. PW 11 had mentioned that Saheb Pal, Sahadeb

Pal, Barun Diger, Nakul Diger, Asit Ghosh, Tapas Kha along with

others were present and they were rejoicing and running towards

Naimuddin with weapons at hand. There is noticeable deviation in the

depositions of the said witnesses namely PW 6, PW 7, PW 8, PW 9, PW

11 regarding the names of the accused persons who were present along

with Baladeb Paul. However, it appears that the learned Trial Judge did

not consider the evidence on record properly.

Page 12 of 17

18. At page nos. 6 and 7 of the judgment the learned Trial Judge has

mentioned in a tabular form the list of exhibits from the side of

prosecution and they were as follows:-

Sl. No. Exhibit Number Description

1. Exhibit 1 Written complaint.

2. Exhibit 1/1 Endorsement on written complaint

with signature and seal of PW 18.

3. Exhibit 2 Seizure List dated 10.07.2023.

4. Exhibit 2(a) Signature of PW 1 on seizure list dated

10.07.2013.

5. Exhibit 2/2 Signature of PW 16 on seizure list

dated 10.07.2013.

6. Exhibit 2/3 Signature of PW 17 on seizure list

dated 10.07.2013.

7. Exhibit 3/a Signature of PW 3 on inquest report.

8. Exhibit 3/b Signature of PW 8 on inquest report.

9. Exhibit 4/a to

Exhibit 4/d

Signatures of PW 3 on statement u/s

164 Cr.P.C.

10. Exhibit 5/a to

Exhibit 5/d

Signatures of PW 8 on statement u/s

164 Cr.P.C.

Page 13 of 17

11. Exhibit 6 Post Mortem Report of the victim.

12. Exhibit 6/1 Signature of PW 14 on Post Mortem

Report.

13. Exhibit 6/2 Signature of PW 15 on Post Mortem

Report.

14. Exhibit 7 Carbon process of Dead Body Challan.

15.

Exhibit 8 F.S.L report.

16. Exhibit 9 Formal FIR.

17. Exhibit 10 Seizure list dated 09.12.2011.

18. Exhibit 11 and 11/1 Rough Sketch Map of P.O with Index.

19. Exhibit 12 Seizure list dates 09.12.2011 prepared

by Satya Barik.

20. Exhibit 13 Carbon copy of forwarding letters to

FSL, Kolkata of bullet head & other

items, comprising of 4 pages.

19. It appears that from page no. 52 of the judgment the Learned Trial

Judge has mentioned as follows:-

“Exhibit 3 is the Inquest Report which was held

on the date of incident at 13.30hrs which

Page 14 of 17

inquest was held immediately after filing of the

complaint.”

20. But from the original record, we find that there is no Exhibit 3 in the

list of exhibits of the prosecution. Although the signatures of PW 3 and

PW 8 on the inquest report have been marked as Exhibit s 3a and 3b

respectively and although the contents of the said inquest report were

not admitted in evidence, the learned Trial Judge has proceeded to

dispose of the case as if the inquest report has been marked as Exhibit

3. We have already mentioned that the Officer who conducted the

inquest report namely Satya Barik was not examined by the

prosecution. If the contents of the inquest report were not admitted in

evidence how the Learned Trial Judge has recorded that the inquest

report has been marked as Exhibit 3 and the same was held

immediately after filing of the complaint.

21. Similar is the situation in case of the statement of PW 3 recorded

under Section 164 Cr.P.C. Although the Magistrate was not called as a

witness and his deposition was not recorded, the learned Trial Judge

proceeded to dispose of the matter holding that the statement under

Section 164 Cr.P.C. has been marked as Exhibit 4. From th e list of

Exhibits of the prosecution, it appears that there is no such Exhibit 4

mentioned in the said list at page nos. 6 and 7. Only the signatures of

PW 3 on the statement of 164 Cr.P.C. was marked as Exhibit 4a to

Exhibit 4d. It is also found that although the concerned Magistrate was

not examined before the learned Trial Judge at the time of trial, the

statement of PW 8 before the learned Magistrate recorded under

Page 15 of 17

Section 164 Cr.P.C. was shown in Page No. 52 of the judgment as

Exhibit 5 but actually there is no Exhibit 5 in the list of exhibits of the

prosecution as mentioned above. Only the signatures of PW 8 on the

statement under section 164 Cr.P.C. were marked as Exhibit 5a to

Exhibit 5d. Inspite of the fact that the two statements of PW 3 and PW

8 recorded under Section 164 were not proved by producing the

concerned Judicial Magistrate or Magistrates before the learned Trial

Court, and the contents of the said statements of the witnesses under

Section 164 Cr.P.C., were not admitted in accordance wi th law, the

Learned Trial Judge has proceeded to hold that PW 3 and PW 8

narrated the entire incident to the learned Magistrate and it is seen

that Exhibit 4 and Exhibit 5 (not mentioned in the Exhibit list)

corroborated the evidence of such witness in all respects. We have gone

through the original Trial Court record and examined the same and

found that there is no Ext. 3, Ext. 4, Ext. 5 as depicted by the learned

Trial Judge. This is a clear non-application of mind and dereliction of

duties entrusted upon a Judicial Officer.

22. The prosecution has relied upon the evidence of interested witnesses

only and there is no corroborative piece of evidence to support such

deposition of the said witnesses.

23. In view of the above discussion we are not satisfied that conviction of

the above appellants is sustainable in law and in facts. Hence, we are

inclined to set aside the judgment and order of conviction dated

23.06.2025 and order of sentence dated 24.06.20 25 passed in

connection with the S.T. Case No. 01 (07) 2016 (S.C. Case No. 95 of

Page 16 of 17

2015) of the Learned Court of Additional District and Sessions Judge,

1

st

Court, Arambagh at Hooghly.

24. Accordingly, the appeals are allowed. The judgment of conviction and

sentence recorded by the learned Trial Judge is set aside and the

appellants are acquitted of the charge.

25. The appellants Barun Diger, Nakul Diger, Saheb Pal, Akhtarul

Hauqe Chowdhury, Swapan Roy@ Nikhil, Kamrul Alam Choudhury@

Tapan, Tapas Kha, Gopal Diger, Pannalal Mondal, Gajan Pramanick

Madon@ Madan Mohan Ghosh, Sk. Abdul Safik, Asit Ghosh@ Udo,

Choudhury Mahadhub Hossain, Santosh Pandit, Tarun Kanti

Mondal@ Abhi, Asit Singha Roy, Mob aidul Hossain@ Islam@ Sk.

Mobaidul Islam be set at liberty at once if they were not wanted in any

other case.

26. The appeals being nos. CRA (DB) 278 of 2025 with CRAN 1 of 2025

and CRAN 2 of 2025, CRA (DB) 279 of 2025 with CRAN 1 of 2025

and CRAN 2 of 2025, CRA (DB) 314 of 2025 with CRAN 1 of 2025,

are hereby allowed. No order as to Costs.

27. Accordingly, CRA (DB) 278 of 2025 with CRAN 1 of 2025 and

CRAN 2 of 2025, CRA (DB) 279 of 2025 with CRAN 1 of 2025 and

CRAN 2 of 2025, CRA (DB) 314 of 2025 with CRAN 1 of 2025 are

disposed of.

28. Let a copy of this judgment along with the Trial Court Records be

sent to the Learned Court below.

Page 17 of 17

29. Urgent photostat certified copies of this Judgment, if applied for, be

supplied to the parties on compliance of all necessary formalities.

I agree.

(APURBA SINHA RAY, J.) (ARIJIT BANERJEE, J.)