BADAL MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against judgment and order dated 23rd August, 2016 and 24th August, 2016 passed by learned Additional District and Sessions Judge, Nadia, in Sessions Trial No. 7(9)2009 arising out of Sessions Case No. 52(09)2009 convicting the appellant for commission of offence punishable under Section 307 of the Indian Penal Code and sentencing him to suffer imprisonment for seven years and six months and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for three months more.

(2.) The prosecution case, as alleged, against the appellant is to the effect that on 29.03.2009 at 8 a.m. Dinesh Biswas, P.W. 6 herein, was proceeding on a bicycle down to a metalled road situated between Abhoynagar new bus-stand and Sahebnagar old bus-stand. At that time an unknown person caught hold of the bicycle and the appellant fired at him at point blank range at his right ear. As a result, the victim fell down and became senseless. He was initially taken to Palashipara Block Primary Health Centre and thereafter to Krishnagar District Hospital for better treatment and finally to AMRI Hospital in Calcutta. Over the issue, P.W. 1 lodged a complaint at the Tehatta Police Station resulting in registration of Tehatta Police Station Case No. 176 of 2009 dated 29.03.2009 under Sections 326/307 of the Indian Penal Code and Sections 25/27 of the Arms Act against unknown persons. In the course of investigation, charge-sheet was filed against the appellant and the case was committed to the Court of Sessions and transferred to the Court of learned Additional District and Sessions Judge, Nadia, for trial and disposal. Charge was framed under Section 307 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. In the course of trial prosecution examined fifteen witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In conclusion of trial, learned trial Judge by judgment and order dated 23rd August, 2016 and 24th August, 2016 convicted and sentenced the appellant, as aforesaid. Hence, the present appeal. At the time of hearing of the application for suspension of sentence, a co-ordinate bench issued a rule upon the appellant for enhancement of the sentence imposed upon him. The appeal and the aforesaid rule are taken up together for hearing.

(3.) Mr. Roy, learned Counsel along with Ms. Das, learned Counsel argued that the prosecution evidence suffers from gross embellishments and/or infirmities. P.W.s. 2 and 4, brothers of the victim Dinesh, claimed that they were present at the spot and had witnessed the incident. Strangely enough, P.W. 1, another brother of the victim, lodged F.I.R. against unknown persons. Although P.W. 4 claimed that he had taken the victim to Palashipara Block Primary Health Centre (BPHC), Ext. 14, medical certificate of the said medical centre showed that the victim was brought by "unknown person". Such inconsistencies grossly improbabilise the presence of P.Ws. 2 and 4, brothers of the victim, at the place of occurrence. Version of P.W. 7, Bharat Ghosh, independent eye-witness is also improbable. He met Mriganka Biswas, P.W. 13, scribe of the F.I.R. at the spot. If that was so, name of the appellant, as an assailant, would have transpired in the F.I.R. which was registered against unknown accuseds. There was enmity between the victim P.W. 6 and the appellant and, therefore, false implication of the latter cannot be ruled out. It has also been argued that the ocular version of P.W. 6, the injured and other witnesses with regard to bullet injury is wholly improbabilised by the medical evidence of P.Ws. 8 and 15 and exhibit-14, as aforesaid. Hence, the appellant is entitled to an order of acquittal.