Form No. J(1)

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Present :

The Hon’ble Justice Rajasekhar Mantha

And

The Hon’ble Justice Rai Chattopadhyay

C.R.A. 407 of 2017

Mongala Sardar & Ors

v.

The State of West Bengal

For the Appellant: Mr. Saswata Gopal Mukherji, Ld. Sr. Adv.

Ms. Debadrita Mondal, Ld. Advocate

For the State : Mr. Saryati Datta, Ld. Amicus Curiae :

Hearing concluded on : June 9

th, 2026.

Judgment pronounced on : June 11

th, 2026.

Rajasekhar Mantha, J:

1. The subject appeal is directed against the judgment of conviction dated

May 16

th

, 2017, and order of sentence dated May 17

th

, 2017, passed by the

Additional Sessions Judge, Fast Track Court, Katwa, in Session Trial No.

01/2013, arising out of the Session Case No. 73/2012.

2. The 6 appellants were convicted under Section 302 IPC read with Section

34 of the IPC. They were sentenced to suffer life imprisonment and to pay a

fine of Rs. 5,000 each. They were directed to further undergo a rigorous

imprisonment for a term of one year. The appellant Karna Ghosh died

during the pendency of the subject appeal. The appeal stands abated in so

far as Karna Ghosh, since none of his legal heirs or immediate family

members has expressed a wish to pursue this subject appeal on his behalf.

3. The appellant Mongala Sardar was further convicted for the offence

punishable under Section 25(1-B) (a) of the Arms Act, 1959. He was

sentenced to suffer rigorous imprisonment for 1(one) year and to pay a fine

of Rs. 2,000. In default thereof, he was directed to undergo rigorous

imprisonment of six months. The said Mongala Sardar was also convicted

for the offence punishable under Section 27(2) of the Arms Act. He was

sentenced to suffer rigorous imprisonment for seven years and to pay a

fine of Rs. 2,000. In default thereof, he was directed to undergo a rigorous

imprisonment of six months.

4. The appellant, Bapan Sardar, was convicted for the offence punishable

under Section 27(1) of the Arms Act, 1959. He was sentenced to suffer

rigorous imprisonment for three years and to pay a fine of Rs. 2,000. In

default thereof, he was directed to undergo a rigorous imprisonment for six

months.

5. The said sentences were directed to run concurrently. The pre-trial

detention and detention during the trial were directed to be set off in terms

of Section 428 of the CrPC. The appellants were allowed to claim the

benefit of remission or commutation of sentence, if eligible, in terms of

Section 433A of the CrPC.

THE PROSECUTION CASE AND EVIDENCE ON RECORD

6. The appellants killed the victim out of political rivalry. They were workers

of a particular political party. On January 22

nd, 2010, the deceased victim

Prasanta, accompanied by his son, PW 1, were travelling to Modak Para

(local neighbourhood) to the house of one Jagai Ghosh for installing an

asbestos sheet on his rooftop. The appellants intercepted the victim and

PW 1. Appellant, Mongala Sardar, fired gun shots at the head of the

deceased victim. Appellant Bapan Sardar armed with Ram da (vegetable

cutter found in every local household) inflicted injuries on the throat of the

victim. The other appellants restrained PW 1, the son of the victim, from

saving his father. On hearing the hue and cry of PW 1, locals arrived at the

PO, the appellants fled away.

7. PW 1 filed the written complaint against the said appellants with the

Katwa PS on January 22

nd, 2010. Accordingly, the Katwa PS case cum FIR

no. 30 of 2010 dated January 22

nd, 2010 was registered under Section 302

read with Section 34 of the IPC, and Sections 25(1-B)/(a) and 27 of the

Arms Act, 1959, against the appellants herein.

8. An inquest thereafter was conducted on the same day from 11 A.M.,

which ended at 11:35 A.M. The inquest report noted that the victim had

suffered gunshot and sharp cutting injuries. The entry point of the bullets

was found at the right-side neck of the victim. The exit point thereof was

at jaw of the victim. The inquest report recorded that the appellant

Mongala Sardar along with other accused persons fired bullet shots at the

victim and cut the victim’s throat, due to an old rivalry.

9. Post mortem was conducted on the same date. It found that the victim has

died out of gunshot and sharp cutting injuries. Investigation was

completed and chargesheet was filed by the Katwa PS.

10. On April 10

th, 2013, charges were framed under Section 302 read with

Section 34 of the IPC against all the appellants. The appellants were

further charged under Section 3 and Section 25(1-B)/(a) of the Arms Act,

1959, read with Section 34 of the IPC. The appellants were also charged

under Section 5 and Section 27 of the Arms Act, 1959 read with Section

34 of the IPC.

11. PW 1 was the complainant and son of the victim . He has deposed

that he and the victim were on the way to install asbestos at the rooftop

at the house of one Jogai Ghosh. The victim and PW 1 were at Modak

Para, when the appellants intercepted them in front of the cow-shed of

Arun Dutta. The appellant no. 1 Mongala Sardar fired bullets on the head

of the victim. The appellant no. 6 Bapan Sardar cut the throat of the

victim by a Ram da. The other appellants encircled and obstructed the

free movement of PW1, and threatened his life, if he tried to save his

father.

12. PW 1 has deposed that the appellants thereafter washed the said sharp

cutting weapon in the nearby pond, owned by one Kashinath Modal,

Saheb Sain and others. The appellants fled the PO before arrival of the

locals. The local were alerted by the hue and cry of PW-1. He has deposed

that Gopinath Das, a CPI (M) worker, informed the police about the said

incident.

13. PW1 witnessed the inquest report. He has deposed that the police

collected blood-stained earth from the P.O. During trial, he identified his

signature on the said seizure list. The victim was wearing a lungi and a

sweater. The wearing apparels were, however, not produced before the

Court.

14. PW 1 has deposed that on January 28

th

, 2010, the police seized a pipe

gun and a Da from the house of the deceased appellant Karna Ghosh based

on the disclosure by the appellants. The same were seized under the

seizure list dated January 28

th

, 2012. In his examination-in-chief, PW 1

has identified his signature on the said seizure list.

15. During cross-examination, PW 1 admitted to 5 criminal cases pending

against him. PW 1 was confronted, that the victim had suffered injuries

and died in the riot that took place the day before the incident, which he

denied. The defence further suggested that PW 1 has compelled the wife of

the appellant no 3, Sujata Sain, to leave her village, which was denied by

PW 1.

16. PW 2 was the scribe of the complaint and accused in the murder

of one Netai Saha. He has deposed that he had written the said

complaint on the instructions of PW1, based on which the said FIR no.

30 of 2010 was registered against the appellants. He had explained and

read over the contents of the said complaint to PW-1. He has identified

his signature in the said complaint.

17. PW 2 has deposed that on the fateful day, he saw that the appellants

came out from the house of Arun Dutta. The appellant no. 1 Mongala

Sardar fired bullets at the head of the victim. The victim fell into a

ditch. The appellant no. 6 Bapan Sardar inflicted injuries on the throat

of the victim with a Da. He was witnessing the said incident from a

distance. Upon his arrival at the P.O., he found the victim lying in a

restless condition near a drain. He found PW 1 was senselessly lying at

some distance from the victim. He has deposed that the wearing

apparels of the victim were stained with blood.

18. In cross-examination, PW 2 has confirmed that he was one of the

accused persons in the murder of Netai Saha in the GR case no. 564 of

2011. PW 1 also happens to be the accused in the said case of the

murder of Netai Saha. In cross-examination, PW2 has confirmed that

the victim and PW1 did not get injured during any riot. PW 2 has denied

being a worker of the CPI (M) political party. He has, however, deposed

that he is a supervisor of the MNREGA scheme, appointed by the

CPI(M).

19. PW 3 was an inquest witness. He has signed the inquest report. He

was a witness to the seizure of blood-stained earth. He has deposed

that on the fateful day, he was going to his field for planting paddy. His

house is 5 minutes from the cowshed of Arun Dutta. He saw the

appellants come out from the said cow shed and encircling the victim

and PW 1. The appellant No. 1, Mangal Sardar, fired bullets at the

victim. The appellant no. 6 Bapan Sardar inflicted injuries on the throat

of the victim with a sharp cutting weapon, Da.

20. PW 3 has deposed that police came to their village on January 28

th,

2010, at about 6:30 p.m. The police recovered one pipe gun and a daw

(vegetable cutting-dagger) from the manual ditch of the deceased

appellant Karna Ghosh. The same were recovered and seized in the

presence of the appellants Mongala Sardar and Bapan Sardar and

based on their leading statements. He has identified his signature on

the seized pipe gun and da. He has admitted to 3 criminal cases

pending against him.

21. PW 3 has deposed that he and his mother are full-time workers

of the CPI (M) party. He has deposed that the victim and PW 1 were

not injured during any riot. He also admitted that he was an accused

in the murder of Netai Saha.

22. PW 4 was another inquest witness. He has deposed that the

PO is seven minutes away from his house. On the fateful day, he was

going to his land to plant paddy. He is a cultivator by profession. On

his way, he saw the appellants had encircling the victim and PW 1.

The appellant No. 1, Mongala Sardar, fired bullets at the victim. The

appellant no. 6 Bapan Sardar attacked the victim with a sharp cutting

weapon on his throat. He has denied that he is a thief or a dacoit.

23. PW 4 has deposed that the police have not interrogated him

during the investigation. He deposed for the first time in the court. He

has admitted to 5 criminal cases pending against him.

24. PW 5 was the post-mortem doctor. He conducted autopsy on

the dead body of the victim. He found gunshot injuries fired from a short

distance, and sharp cutting injuries, inflicted by a very sharp weapon on

the person of the victim. He did not find any bullet in the body of the

victim. He, however, found an exit hole in the person of the victim. He

did not find any blood clot at the site of the injury caused by a sharp

cutting weapon. The brain and skull of the deceased victim was found to

be intact but pale.

25. PW 6 was a police constable. On the fateful day, he was posted

at the Katwa PS. He brought the dead body of the victim from

Gushumba (the village where the victim was murdered) to the Katwa

Hospital for post-mortem examination.

26. PW 6 has deposed that after the conclusion of the post-mortem,

he handed over the wearing apparels of the victim and the PM blood to

SI Sukumar Sen. He has deposed that SI Sukumar Sen seized the

articles under a proper seizure list. He has deposed that no one was

called at the time of the preparation of the seizure list. He has deposed

that he has not been shown the PM blood during course of the trial.

27. PW 7 was the senior adjutant, Home Guard, and an Arms

expert. He deposed that he received one sealed packet containing an

improvised pipe gun. In his examination in chief, he has deposed that

the said pipe gun was in working condition when the same was

examined by him. In cross examination, he has deposed that the pipe

gun gathered rust. He could not state as to whether the said pipe gun

was in a working condition at the time of trial.

28. PW 8 was a retired additional sub-inspector of police at

Katwa PS. He has deposed that SI Sukumar Sen has prepared the

seizure list. He has deposed that he cannot say as to whether SI

Sukumar Sen made any attempt to call on any local witness to sign on

to the said seizure list. He has deposed that the IO properly packed,

sealed, and levelled the seized materials.

29. PW 9 was the UD assistant. He took the seized pipe gun for a

ballistic examination.

30. PW10 was the SI of the police at Katwa PS . He sent a written

requisition for FSL examination of the materials seized. He has

deposed that the FSL, however, did not give any report. He has

deposed that he submitted the charge sheet against the appellant.

31. PW 11 was the investigating officer of the case. He has

indicated the steps taken by him during the course of the

investigation. He has deposed that the said appellants, Mongala

Sardar and Bapan Sardar, have made a statement before him as to

the place where the said pipe gun and Da were kept. The same were

eventually recovered from the house of the deceased appellant Karna

Ghosh. The said two appellants pointed out the cow dung/manure

ditch from where the said weapons were recovered. A seizure list of

the said weapons was prepared in the presence of the available

eyewitnesses.

32. In cross-examination, PW 11 has deposed that he has not

examined Nilmoni Modak and Arun Dutta, whose houses are situated

close to the PO. He has deposed that the place of occurrence is

actually the inlet of a drain. He has deposed that he has not made any

prayer before the learned magistrate for recording the statements of

the appellants, Mongala Sardar and Bapan Sardar, under Sec. 164,

CRPC.

33. Based on the evidence as above, the trial court convicted the

appellants as stated above.

ANALYSIS OF THIS COURT

34. Learned Counsel for the appellants has pointed out that the

prosecution witnesses have criminal antecedents. The eyewitnesses of

the prosecution, namely PW 1-4 have been arrayed as accused

persons in the criminal cases, lodged by the appellants and family.

They all are co-accused in the murder of one Netai Saha, supporter of

a rival political party the Indian National Congress which the

appellants supported. The victim and PW 1-4 supported the CPI (M)

party. The said PWs, therefore, have a motive to falsely implicate the

appellants.

35. Sections 146, 153, and 155 of the Evidence Act, 1872, specify

the mechanism by which the credibility of a witness can be impeached

with reference to his or her character and past criminal records. The

said sections are set out below:-

Sec. 146. Questions lawful in cross-examination. –– When a witness is

cross-examined, he may, in addition to the questions hereinbefore

referred to, be asked any questions which tend––

(1) to test his veracity,

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although

the answer to such questions might tend directly or indirectly

to criminate him, or might expose or tend directly or indirectly

to expose him to a penalty or forfeiture

[Provided that in a prosecution for an offence under section

376, 3 [section 376A, section 376AB section 376B, section

376C, section 376D, section 376DA, section 376DB] or

section 376E of the Indian Penal Code (45 of 1860) or for

attempt to commit any such offence, where the question of

consent is an issue, it shall not be permissible to adduce

evidence or to put questions in the cross-examination of the

victim as to the general immoral character, or previous

sexual experience, of such victim with any person for

proving such consent or the quality of consent.]

Sec. 153. Exclusion of evidence to contradict answers to questions

testing veracity. ––When a witness has been asked and has answered

any question which is relevant to the inquiry only in so far as it

tends to shake his credit by injuring his character , no evidence

shall be given to contradict him ; but, if he answers falsely, he may

after wards be charged with giving false evidence.

Exception 1.–– If a witness is asked whether he has been previously

convicted of any crime and denies it, evidence may be given of his

previous conviction.

Exception 2.–– If a witness is asked any question tending to

impeach his impartiality, and answers it by denying the facts

suggested, he may be contradicted. Illustrations

Sec. 155. Impeaching credit of witness .––The credit of a witness may be

impeached in the following ways by the adverse party, or, with the consent of

the Court, by the party who calls him:––

(1) By the evidence of persons who testify that they, from

their knowledge of the witness, believe him to be unworthy of

credit

(2)*********************

(3)***********************

Explanation. –– A witness declaring another witness to be

unworthy of credit may not, upon his examination-in-chief,

give reasons for his belief, but he may be asked his reasons

in cross-examination, and the answers which he gives

cannot be contradicted, though, if they are false, he may

afterwards be charged with giving false evidence.

Emphasis Applied

36. In a criminal trial, the accused is under the trial not the witness.

Evidence, therefore, is adduced qua an accused person. The nature of

such evidence may include evidence relating to the good or bad

character of an accused. This is evident from a conjoint reading of

Sections 53 and 54 of the Evidence Act, 1872. The character of a

witness is, however, never a principal issue in a criminal trial.

37. Explanations 1 and 2 are exceptions to the rule of Sec. 153 i.e.

evidence impeaching the character of a witness cannot be adduced.

The said two explanations kick in when a witness denies any

suggestions that impeachhis character or impartiality.In State of

Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715, it was held as

follows-

28. The general rule of evidence is that no witness shall be cited to

contradict another witness if the evidence is intended only to shake

the credit of another witness….

29. The said rule has only two exceptions. One is that if the witness

denies having been previously convicted then evidence can be

adduced to prove that he was so convicted. The other exception is

the following:

“Exception 2.—If a witness is asked any question tending to

impeach his impartiality, and answers it by denying the facts

suggested, he may be contradicted.”

30. Illustration (d) cited in Section 153 is to amplify the aforesaid

Exception 2. That illustration is extracted below:

“(d) A is asked whether his family has not had a blood feud with

the family of B against whom he gives evidence. He denies it. He

may be contradicted on the ground that the question tends to

impeach his impartiality.”

31. The basic requirement for adducing such contradictory evidence

is that the witness whose impartiality is sought to be contradicted

with the help of such evidence, should have been asked about it and

he should have denied it. Without adopting such a preliminary recourse

it would be meaningless, if not unfair, to bring in a new witness to speak

something fresh about a witness already examined.

32. As the general rule of evidence is one of prohibiting evidence on

collateral issues and since it is only by way of exception that such

evidence can be permitted, the court must guard that the defence

evidence falls strictly within the exception.

Emphasis applied

38. In the present case, the appellants have not suggested that the

PWs have been CONVICTED. Thus, the explanation no. 1 is not

attracted. Explanation no. 2 is equally not applicable since during

cross-examination by the appellants, the PWs have admitted that

criminal cases have been lodged against them by some of the

appellants. The PWs, therefore, have not denied any suggestions put

to them by the defence, which had the tendency to impeach their

character.

39. Illustration no. (d) to Section 153 negates the argument of the

appellants. The impartiality of the said PWs could have been

impeached, if they had denied the criminal cases lodged against them

by some of the appellants. In the present case, the PWs have not

denied the criminal cases lodged against them. In Vijayan @ Vijaya

Kumar V. State Rep. By Inspector Of Police, reported in 1999

INSC 125, it was held as follows:-

Section 153 is based on the decision rendered by Pollock CB in

Attorney General v. Hitchock, (1847) 1 Ex.91 in which the learned

Judge observed that B "a witness may be contradicted as to anything

he denies having said provided it be connected with the issue as a

matter capable of being distinctly given in evidence, or it must be so

far connected with it as to be a matter which, if answered in a

particular way, would contradict a part of the witness's testimony,

and if it is neither the one nor the other of these, it is collateral to

though in some sense it may be considered as connected with, the

subject of enquiry." The rule limiting the right to call evidence to

contradict a witness on collateral issues excludes all evidence

of facts which are incapable of affording any reasonable

presumption or inference as to the principal matter in dispute

Emphasis applied

40. Therefore, it follows that the credibility of a witness is not to be

assessed in a straitjacket formula, namely that the witness in

question is accused in criminal cases. The credibility of a witness falls

in the subjective satisfaction of the Court to be formed based on

objective criteria.

41. The character/criminal antecedents of a witness cannot and

does not impact the events witnessed by him or her. This is regardless

of whether the witness has enmity against the person involved in the

said events. The same is based on the principle of presumption of

innocence that runs in favour of a person turned witness who is

accused of any crime.

42. However, when a witness is an accused in other criminal cases

initiated by the accused facing the trial, the Court must carefully

scrutinise the evidence tendered by such a witness, in terms of

Section 146(3) read with Section 153 of the Evidence Act, 1872.

43. The status of the said PWs vis-a-vis the appellants should also

be examined from the following legal perspective. It is argued that PW

1- 4 are interested witnesses since they may derive benefit from seeing

some of the appellants being convicted.

44. The evidence of the interested witnesses cannot automatically be

discarded. The criminal antecedents of a witness do not operate as a

disqualification for them to truthfully depose before the Court. The

Court is tasked to assess the evidence of an interested witness with

caution, but not suspicion. In Jayabalan v. State (UT of

Pondicherry), reported in (2010) 1 SCC 199, it was held as

follows:-

23. We are of the considered view that in cases where the court is

called upon to deal with the evidence of the interested witnesses, the

approach of the court, while appreciating the evidence of such

witnesses must not be pedantic. The court must be cautious in

appreciating and accepting the evidence given by the interested

witnesses but the court must not be suspicious of such evidence .

The primary endeavour of the court must be to look for consistency.

Emphasis Applied

45. In Sarwan Singh v. State of Punjab, reported in (1976 (4)

SCC 369), it was held that the evidence of an interested witness needs

no corroboration as a rule of law, provided the evidence is reliable and

unimpeachable. Para no. 10 of Sarwan Singh (supra) is set out

below:-

“….. The evidence of an interested witness does not suffer from any

infirmity as such, but the Courts require as a rule of prudence,

not as a rule of law, that the evidence of such witnesses

should be scrutinised with a little care. Once that approach

is made and the Court is satisfied that the evidence of

interested witnesses have a ring of truth such evidence could

be relied upon even without corroboration

Emphasis Applied

46. On the fateful day, PW 1 was accompanying the victim to work

in the house of one Jagai Ghosh. His presence at the PO, therefore, is

obvious. PW 1 was the son of the deceased victim. PW 1 is, therefore,

a related witness. In Dalip Singh v. State of Punjab, reported in

(1953) 2 SCC 36, it was held that a relative of the victim would want

the actual culprit to be punished. Paragraph no. 26 of Dalip Singh

(supra) is set out below:-

26. 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.

Emphasis applied

47. The evidence of PW 2 indicates that PW 1 was also injured. No

injury report to that effect is, however, available on record. It can,

however, be reasonably inferred that PW 1 may have received injuries

since he was with the victim when the latter was attacked by

appellants. In fact, PW 1 was encircled by the appellants to ensure

that the victim is not attended to.

48. The appellants Mongala Sardar and Bapan Sardar killed the

deceased in front of the eyes of PW 1. This piece of evidence deposed

by PW1 has withstood and passed the test of cross-examination. The

prosecution has thus proved the guilt of the said two appellants

beyond any shadow of doubt.

49. The evidence of PW 2 to PW 4, however, requires our careful

consideration. It is argued that the presence of PW 2-4 at the PO is

most unnatural. The said PWs cannot simultaneously be out of their

houses for work and seen the commission of the crime. It is argued

that the said PW 2-4 and PW 1 and the victim were ‘partners in crime’.

PW 2-4 have been argued to be set up against the appellants.

50. The houses of PW 3 & 4 were just 5 and 7 minutes away from

the PO. The presence of the said PWs at the PO therefore is not

unusual. The appellants did face resistance from PW 1 while attacking

the victim. The appellants, thus, took some time to end the life of the

victim. Consequently, the said PWs got the time to walk to the PO and

witness the crime, which was just few minutes from their respective

homes. PW 1 also raised hue and cry from the PO. PW 3 and 4,

therefore got alerted by the hue and cry of the PW 1, and arrived at

PO.

51. PW 2 has deposed that when he arrived at the PO, he saw that

the victim was lying moribund and PW 1 was lying unconscious

thereat. PW 3 whereas has deposed that he did not see the PW 1 and

victim lying at the PO in the said condition. The PW 2 and 3,

therefore, did not arrive at the PO at the same time. The difference in

their time of arrival at the PO follows from the difference in the

distance of their respective homes from the PO.

52. What however has withstood the test of cross-examination is

that PW 2, 3, and 4 have deposed in unison that they have seen the

appellants Mongala Sardar and Bapan Sardar firing bullets and

attacking the throat of the victim with a sharp cutting weapon

respectively.

53. During trial, PW 2-4 have not mentioned the presence of one

another at the PO. PW 1 has deposed that he raised hue and cry to

which the locals arrived at the PO. He has not mentioned the presence

of PW 2-4 at the PO. It is most probable that the PW 1 may not have

specifically recollected their presence, overcome by the events. The

defence has also not cross-examined the said PWs in that regard.

54. Therefore, the said PWs did not have the occasion to mention

the presence of one another at the PO. The presence of the said PWs

at the PO at the same time is secondary to main incident, i.e. the

attack on the victim by the appellant nos. 1 and 6, which is

established from the evidence of the PWs.

55. The PW 1-4 have deposed that the appellants Mongala Sardar

and Bapan Sardar assaulted the deceased. The said PWs were

consistent in the naming the appellants Mongala Sardar and Bapan

Sardar. The other appellants were stated to have encircled the victim

and PW 1. No specific role is assigned to the other appellants in the

offence. The names of the other appellants are only mentioned in the

written complaint dated January 22

nd

, 2010, lodged by PW 1.

56. It is next argued that the specific mention of the names of the

said two appellants during the Trial may have been done with a

motive. The appellant Bapan Sardar lodged a case of ‘attempt to

murder’ under Sec. 307, IPC, against PW 1 and victim. The appellant

Mongala Sardar has lodged the case of arson and loot under Sec. 390,

IPC against the victim and PW 1. The nature of the said cases is thus

serious. Therefore, it is argued that it cannot be ruled out that the

said PWs have a greater motive to implicate the said two appellant

nos. 1 and 6 than the other appellants. The aforesaid argument,

however, cuts both ways. The appellants also had motive to kill the

victim.

57. Appellant no. 3 Swapan Sain was the complainant in a case of

arson and loot against PW 1 and PW 3. The defence has suggested

that PW 1 has even compelled the wife of the appellant no.3, Sujata

Sain, to leave her village. Swapan Sain, appellant no.3, has not been

assigned any specific role by the said PWs in the trial.

58. Learned Sr. Counsel for the appellants has next argued that the

defence, during the course of the trial, has suggested that the victim

and PWs are habitual offenders. The victim may have been injured in

a riot that took place the day before the incident. Ld. Sr. Counsel for

the appellants seek to develop the aforesaid argument by adding that

the victim and the prosecution witnesses areco-accused in the

criminal cases, lodged by some of the appellants, against them. This

argument cannot be accepted since there is no evidence to suggest

that any riot took place on the day before the incident.

59. Learned Sr. Counsel for the appellants next argued that the

investigating agency has withheld independent witnesses, who may

have seen the crime. He has pointed out that the prosecution

witnesses have deposed in unison that the appellants came out from

the cow shed of Arun Datta and attacked the victim. The appellants,

therefore, were hiding in the said cow shed. It is argued that thus the

said Arun Datta would be aware of the presence of the appellants at

the material point in time. The rough sketch prepared during

investigation indicates that the house of Arun Dutta is near the PO.

He, however, has not been cited as a witness by the prosecution.

60. This Court notes that the defence has not established the

presence of Arun Datta in the cow shed. Therefore, it cannot be held

that Arun Datta was a witness to the presence of the appellants in the

cow shed. Secondly, the defence has not run the case that Arun Datta

has seen the commission of the crime by the appellants. The defence

has not established that Arun Dutta was present in his house at the

place and time of occurrence. Section 114 of the Evidence Act cannot

be invoked in the facts of the case.

61. In so far as the non-examination of Satinath, Khelaram and

Nilmoni, concerned, the argument of Ld. Amicus that it was about

6:30 am in a January morning when light was poor, cannot be

ignored. It is possible that people were asleep in the village and may

not have heard the gun shot. In any event the prosecution case having

been established by the other evidence on record, the absence of the

the aforesaid persons has not diluted the prosecution case. The

defence has not led evidence that the said persons were available in

their houses.

62. Learned counsel for the appellants has argued that the evidence

of the arms expert, namely PW 7 has not established that the

recovered pipe gun was used in the commission of the crime.

Therefore, no direct link has been proven between the pipe gun and

the commission of the crime in question.

63. This Court however notes that the bullets that hit the victim

were not recovered. The post-mortem doctor has found a bullet exit

hole in the victim's body. The bullet thus got dispersed after piercing

through the body. Therefore, the investigating agency could not trace

the bullets and send them to PW 7. Hence the bullets fired at the

victim could not be correlated with the recovered pipe gun. Therefore,

sufficient explanation is available on record for the absence of the said

correlation between the recovered pipe gun and the commission of the

crime in question.

64. Secondly, the requirement of a ballistic report linking the

murder weapon with the accused is not a mandate. The evidence of

PW 1-4 has established that the appellant nos. 1 and 6 used the

weapon to kill the victim. The medical evidence has further

established the victim succumbed to gun shot and sharp cutting

injuries. In Ram Singh V. The State Of U.P., reported in 2024

INSC 128 it was held as follows.

29. Thus, what can be deduced from the above is that by itself non-

recovery of the weapon of crime would not be fatal to the

prosecution case. When there is such non-recovery, there would be

no question of linking the empty cartridges and pellets seized

during investigation with the weapon allegedly used in the crime.

Obtaining of ballistic report and examination of the ballistic

expert is again not an inflexible rule. It is not that in each

and every case where the death of the victim is due to gunshot

injury that opinion of the ballistic expert should be obtained

and the expert be examined. When there is direct eye witness

account which is found to be credible, omission to obtain

ballistic report and nonexamination of ballistic expert may

not be fatal to the prosecution case but if the evidence

tendered including that of eyewitnesses do not inspire

confidence or suffer from glaring inconsistencies coupled with

omission to examine material witnesses the omission to seek

ballistic opinion and examination of the ballistic expert may

be fatal to the prosecution case.

65. Ld. Sr. counsel for the appellants has argued that the inquest

and post-mortem report have established that the bullet entered

through the back of the neck of the victim and exited from his jaw.

The post-mortem doctor, however, has deposed that the brain and

skull of the victim were intact but pale. It is, therefore, argued that

despite the alleged trajectory of the bullet, the skull of the victim has

remained intact. It could not have, given the area of the bullet injury.

66. The human anatomy tells us that the jaw (mandible) is

anatomically distinct from the skull vault and cranial cavity. A bullet

entering the neck and exiting through the jaw does not, therefore,

necessarily have to fracture the skull.

67. Therefore, the skull being intact does not, by itself, be

inconsistent with a bullet travelling from the neck and exiting at the

jaw. Further, the pipe gun in question was an improvised gun. Its

capability to catapult a bullet in specific trajectory and damage the

skull may not be possible.

68. The medical evidence indicates that the deceased suffered

haemorrhagic and neurogenic shock as a result of the gunshot injury

and the sharp cutting injury. A hemorrhagic shock results in

substantial blood loss. A neurogenic shock results in injuries to vital

organs, namely on the neck and throat region, which the victim in fact

suffered and finally succumbed to. The prosecution case that the

victim has received murderous injuries on his neck and throat is,

therefore, consistent with the said medical evidence.

69. Learned Senior Counsel for the appellants has next argued that

the Da, the alleged second murder weapon, has been sent for FSL

examination. However, no report was prepared and sent by the FSL to

the investigating agency. The recovered Daw, therefore, cannot be

linked to the commission of the crime and the appellants.

70. The investigating agency did send the said da to the FSL. It was

expected that the investigation would coordinate with the FSL and

obtain the report of the FSL the Da. The absence of an FSL report

however has not proved to be fatal for the reasons discussed

hereinafter.

71. The recovery of the said Da and pipe gun runs contrary to the

innocence of the appellants Mongala Sardar and Bapan Sardar in view

of Section 27 of the Indian Evidence Act. The appellants Mongala

Sardar and Bapan Sardar, during interrogation, have stated to the

PW, the IO, that a pipe gun and da have been kept in the manure pit

of the deceased appellant, Karna Ghosh.

72. Based on the said leading statement, the IO recovered and

seized the said pipe gun and Da from the said manure ditch/cow-

dung of the deceased appellant Karan Ghosh. The appellants Mongala

Sardar and Bapan Sardar were present during the said recovery and

seizure of the said weapons. The prosecution, therefore, has

established the mental awareness of the said two appellants about the

recovered pipe gun and the Da.

73. The disclosure of the place where the weapons were concealed

links the said two appellants to the pipe gun and Da read with the

medical evidence of PW 5, the PM Doctor, clearly links the appellants

Mongala and Bapan to the offence. The PM Doctor has deposed that

the victim received gunshot and sharp cutting injuries. The victim

thus was attacked by a pipe gun and Da.

74. Learned Sr. Counsel has finally argued that the wearing

apparels have been seized by the Police. The same have however not

been produced before the Court. The same has been sent for FSL

examination. No report therefrom however was submitted before the

Court. The prosecution, therefore, has not linked the blood stained

wearing apparels to the appellants. This omission is however a mere

defect in the process of investigation. It is now well settled that minor

omissionson the part of the prosecution would not be fatal to the

prosecution case.

75. The decision of Kannaiya v. State of Madhya Pradesh reported

in 2025 SCC Online SC 2270 cannot come to the aid of the

appellants. The said case has application when the substratum and or

genesis of the offence is not established against the appellants. The

foundation of the offence and much more are clearly established in

the instant case.

76. In view of the aforesaid discussions, the following has been

clearly established.

I) The PW1 and the victim were present at the PO. The appellants,

Mongala Sardar and Bapan Sardar, were also present at the PO.

II) The victim suffered gunshot and sharp cutting injuries. The

recovery of the pipe gun, read with the medical evidence, has

established this.

III) The absence of a label on the seizure list relating to the murder

weapon and the non-production of the wearing apparel are

investigative defects.

IV) The evidence of PW 1-4 have established that they have seen the

appellants Mangal Sardar and Bapan Sardar attacking the

victim with a pipe gun and a vegetable dagger.

V) Therefore, it is clearly established that Mongala Sardar and

Bapan Sardar have killed the victim.

VI) There is however no clear evidence of the participation of the

appellants nos. 2, 3, and 5 in the main offence. No specific role

could be established by the prosecution against them. There is

no evidence of any premeditation or evidence of their role in the

offence, beyond reasonable doubt.

CONCLUSION

77. The subject appeal, CRA 417 of 2017 is hereby allowed in

respect of the appellant nos. 2, 3, and 5. The appellant no. 5, Karna

Ghosh has died after the passing of the said order of conviction and

sentence and/or during the pendency of this appeal. The appeal qua

him thus stands abated.

78. The order of conviction and sentence of the appellant nos. 2, 3,

and 5 passed by the Ld. Trial Court, is hereby set aside. They shall be

released forthwith, if in custody. They shall execute the Bond under

Section 437A of the Code of Criminal Procedure, 1973 (CrPC)

corresponding to Section 485 of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (BNSS).

79. The order of conviction and sentence of the appellant no. 1

Mongala Sardar, and appellant no. 6, Bapan Sardar is hereby upheld.

The appeal is therefore dismissed in respect of the said two appellants

only.

80. Consequently all connected applications shall stand disposed of

in terms of this order.

81. Learned Advocate on record for the appellants shall send and

communicate this Order to the office of the Superintendent,

Bardhaman Central Correctional Home, District Purba Bardhaman,

Let the registry of this Court also send a copy of this Order to the said

correctional home.

82. The Trial court records may be returned.

83. There shall be no orders as to costs.

84. All parties to act on the basis of a server copy of this order on

their usual undertaking.

(Rajasekhar Mantha, J)

I Agree

(Rai Chattopadhyay, J)