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1    Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.703 OF 2008

Bishu Sarkar & Ors.               ….Appellants

Versus

State of West Bengal           …. Respondent

J U D G M E N T  

Uday Umesh Lalit, J.

1. This  appeal  is  directed  against  the  Judgment  and  Order  dated

06.06.2006 passed by Calcutta High Court in Criminal Appeal No.255/2000.

2. Six persons namely Tarit Kundu, Bishu Sarkar, Sahadeb Sarkar, Sasthi

Sarkar, Paresh Sarkar and Sukumar Ghosh were tried in Sessions trial No.18

of 1998 arising out of Raiganj Police Station case No.117 of 1995 for having

committed the murder of one Raju Bose on 27.03.1995.  All the accused

were  found  guilty  by  the  trial  court  vide  its  judgment  and  order  dated

05.08.2000  and sentenced  to  undergo  life  imprisonment  for  the  offences

under Section 302 read with Section 34 IPC.  In Criminal Appeal No.255 of

2000, the High Court acquitted accused Nos.5 and 6 namely Paresh Sarkar

and Sukumar Ghose but affirmed the conviction and sentence with respect to

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2 other  four  accused.   Special  Leave Petition  (Criminal)  No.5755 of  2006

preferred  by  accused  No.1  Tarit  kundu  was  dismissed  by  this  Court  on

01.12.2006.  This appeal by other three convicted accused challenges their

conviction and sentence as affirmed by the High Court.   

3. The prosecution principally relies on the testimony of PW 2 Nepal

Dey, PW 3 Gopal Dey and PW 5 Kanai Sharma.  According to PW2 Nepal

Dey,  

“The occurrence took place on the western side of the National Highway-34.  I heard a hue and cry coming from the side of NH 34 when I was fixing up a fencing in my house.  As soon as I heard the hue and cry I gave a glance to the place wherefrom there was raising of  hue and cry.  I  saw accd.  Tarit  Kundu, Sahadeb Sarkar, Sasthi Sarkar, Bishu Sarkar, Sukumar Ghosh and Paresh Sarkar, in all six persons caught hold the collar of shirt  of  Raju  Bose  and  assaulting  him  by  fist  and  blows. ……………………………….................................................... Accd. Sukumar Ghosh and Paresh Sarkar gave the order to kill Raju Bose.  Then accd. Sasthi Sarkar, Bishu Sarkar, Sahadeb Sarkar had remained engaged in catching hold of Raju Bose. Accd. Tarit Kundu gave a blow on the back of Raju Bose with the help of a sharp-cutting weapon like ‘bhojali’.”   

4.        The testimony of PW3 Gopal Dey was to the following effect:-

“I was washing my hands and legs by the water of tube well within my house at the relevant point of time.  I heard hue and cry coming from the road side.  I gave a glance towards the road side and I saw that a dispute was going on over there.  I know the persons who were involved in this  dispute.   Accd. Sasthi Sarkar, Tarit Kundu, Bishu Sarkar and Sahadeb Sarkar

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3 were engaged in assaulting the victim Raju Bose by fist  and blows.   Accd.  Tarit  Kundu  gave  a  blow on the  back  of  the victim Raju Bose with the help of a ‘bhojali’ which I noticed.”   

5. According to PW 5 Kanai Sarma:-

“I  had  proceeded  near  the  place  of  occurrence.   I  saw  the accused Tarit Kundu who had given a blow on the back side of Raju  Bose  with  the  help  of  a  ‘bhojali’.  Acd.  Tarit  Kundu, Sahadeb Sarkar, Bishu Sarkar, Sasthi Sarkar, Paresh Sarkar and Sukumar  Ghosh  caught  hold  of  Raju  Bose  and  there  was  a scuffle between themselves.”   

6. The  medical  evidence  on  record  was  unfolded  through  PW 9  Dr.

Rashbehari Ghosh who found:-

“One stab-wound transverse like margin incised 2” long on the left side of chest, 1½” from midline on the back.  Tracing the track  it  is  found  to  perforate  lung  upper  part  of  lower  lobe through  and  through  including  other  soft  tissues  in  the  well causing fatal bleeding.   

Opinion:-  Death  was  due  to  shock  as  a  result  of  ante mortem wound and haemorrhage as stated, homicidal in nature. ………………………………………………………………...... The wound was inflicted from backside and perforated whole of the lung.”     

7. The injury found in the post mortem report was completely consistent

with the ocular version of prosecution witnesses PW 2, PW 3 and PW 5 and

the author of this injury according to the witnesses was accused No.1 Tarit

Kundu.  Special Leave Petition at the instance of Tarit Kundu having been

dismissed the question that now arises is with regard to the involvement of

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4 the present appellants.  The allegations coming from all the witnesses are

consistent  that  none of  the present  appellants had dealt  any blow by any

weapon and all that they did was to participate in the scuffle.  It is true that

PWs 2 and 5 assert that the present appellants had caught hold of Raju Bose.

But it is not clear from the record whether such act was so intended to enable

accused No.1 to deal the fatal blow.  Further, PW 3 is completely silent on

this aspect.   

8. In the circumstances we deem it appropriate to grant benefit of doubt

to the present appellants and acquit them of the charge under Section 302

read with Section 34 IPC.  This Appeal is thus allowed and the conviction

and  sentence  recorded  against  the  present  appellants  is  set  aside.   The

appellants  shall  be  released  forthwith  unless  their  custody  is  required  in

connection with any other matter.   

………………………..J.        (Adarsh Kumar Goel)

…………..……………..J.        (Uday Umesh Lalit)

New Delhi March 09, 2017