Calcutta High Court (Appellete Side)
Rashid Alam @ Gabbar vs The State Of West Bengal on 29 August, 2011
Author: J. N. Patel
Bench: J. N. Patel
1
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice J. N. Patel, Chief Justice
And
The Hon'ble Justice Ashim Kumar Roy
C.R.A. 232 of 2004
Rashid Alam @ Gabbar Vs. The State of West Bengal.
With
C.R.A. 129 of 2004
Trisha Roy Vs. The State of West Bengal.
Mr. Joymalya Bagchi,
Mr. Somopriya Chowdhury,
Mr. Deep Chaim Kabir..........for the Appellant in C.R.A. 232/2004.
Mr. Sandipan Ganguly,
Sk. Musior Rahman,
Sk. Mujibar Rahman,
Mr. Mehboob Rahman,
Mr. Debanjan Bhattacharya. .for the Appellant in C.R.A. 129/2004.
Mr. Swapan Kr. Mallick.........for the State.
Heard on : 25/04/2011, 26/04/2011, 02/05/2011,
10/05/2011 and 11/05/2011.
Judgment on : 29/08/2011.
J. N. Patel, C.J. : The appellants/accused Rashid Alam @ Gabbar and Trisha
Roy have filed these two separate appeals (Criminal Appeal No. 232 of 2004 and
2
Criminal Appeal No. 129 of 2004 ) aggrieved by their conviction and sentence
passed in S.T. No.4(3) 2002 by the Additional Sessions Judge, Fast Track Court,
Alipore, vide a judgment and order dated 5th February, 2004 and 6th February,
2004. The appellant/convict Rashid Alam @ Gabbar has been found guilty for
having committed offence under Section 302 read with Section 120B of the
Indian Penal Code and for having committed offence under Section 201 read with
Section 34 of Indian Penal Code and also for having committed offence under
Section 120B of the IPC and he has been sentenced to suffer rigorous
imprisonment for life and to pay fine of Rs. 5000/- (five thousand) and in default
to suffer rigorous imprisonment for a period of six (6) months. He has been also
sentenced to suffer rigorous imprisonment for four (4) years and to pay fine of Rs.
2000/- (two thousand) and in default to suffer rigorous imprisonment for a
further period of two (2) months for committing the offence u/s 201/34 of I.P.C.
He is also sentenced to suffer rigorous imprisonment for five (5) years for
committing the offence u/s 27 of Arms Act and to pay fine of Rs. 2000/- (two
thousand) and in default, to suffer rigorous imprisonment for a further period of
two (2) months, and further sentenced to suffer rigorous imprisonment for three
(3) years and to pay fine of Rs. 1000/- (one thousand) and in default, to suffer
rigorous imprisonment for a further period of one month for committing the
offence u/s 25 (1B) (a) of Arms Act. All the sentences were ordered to run
concurrently.
The appellant-convict Trisha Roy has been found guilty of having committed the offence u/s
120B of I.P.C. relating to the offence of murder and has been sentenced to suffer imprisonment for
3
life and also to pay fine of Rs. 5000/- (five thousand) and in default, to suffer simple imprisonment
for a period of six (6) months. She has been also sentenced to suffer simple imprisonment for four
(4) years and to pay fine of Rs. 2000/- ( two thousand) and in default, to suffer simple
imprisonment for two (2) months for the offence u/s 201/34 of I.P.C. Both the sentences to run
concurrently.
In a nutshell, it is the prosecution case that the deceased Sandip Julka @ Banti and the
appellant/accused Trisha had a love affair which continued even after Banti got married, but
subsequently Trisha (appellant/accused) developed relationship with one Ranvijay Singh Rathore
(absconding accused) who was also the friend of Sandip Julka @ Banti (deceased) and did not
approve Banti continuing the relationship with Trisha Roy and they decided to do away with Sandip
Julka @ Banti. Therefore, on 22/05/2001 in the evening Ranvijay Singh Rathore (absconding
accused), Trisha Roy (the appellant/accused), Rashid Alam @ Gabbar (appellant/accused)
accompanied by co-accused Fatman and Sonam gathered in China Garden Restaurant at China
Town. Ranvijay Singh Rathore called Banti at China Garden Restaurant. On receiving a phone call
Sandip Julka @ Banti along with his friends Dipak Agarwal ( P.W.2), Sanjoy @ Kelo, Imtias @
Pappu, Firdouse Alam @ Guddu came to China Garden Restaurant where they were invited by
Ranvijay Singh Rathore (absconding accused) to have dinner with them. After having dinner
Ranvijay Singh Rathore (absconding accused) asked Banti (deceased) to accompany them and Banti
was taken away by Ranvijay in his Maruti Car accompanied by Rashid Alam @ Gabbar, Fatman,
Trisha and Sabnam @ Sonam. It is the prosecution case that after having abducted they took away
Banti in the maruti car and Rashid Alam @ Gabbar at the instance of Ranvijay Singh Rathore shot
him dead and threw his naked body on the eastern side of E. M. Bypass near Matangini Colony. At
about 5.50 a.m. on 23/05/2001, B. N. Halder. A.S.I., Tiljala Police Station received R.T.
information from A.S.I. Binoy Bose Highway Night Round Mobile Officer, that a naked body of a
male person with injury was lying on the eastern side of E. M. Bypass. On receiving the said
information, A.S.I. B. N. Halder rushed to the spot and found dead body of a male person on the
eastern side of E.M. Bypass, having a deep wound on the right side of chest and also a similar deep
wound on the back side of the left ear and noticed blood oozing out of the wounds. Therefore, he
4
lodged an F.I.R. with the Officer-in-Charge, Tiljala Police Station, 24-Parganas (South), that some
persons might have committed the murder of the unknown person whose dead body was lying at
the spot where it was found and prayed for investigation after registering the case under Section
302/201 of I.P.C. He thereafter conducted inquest over the unknown dead body of the deceased
male, aged about 34/35 years, after the inquest was completed and photograph of the dead body
was taken in order to ascertain actual cause of the death, the dead body was sent to the Alipore
Morgue Hospital for post-mortem examination.
In the early morning of 23/05/2001 between 2 hrs. to 3 hrs. P.W. 3 Narendra Kumar Julka
was informed by Dipak Agarwal and others that Ranvijay Singh Rathore, Rashid Alam @ Gabbar
and Fatman had taken his son Banti in the car of Ranvijay Singh Rathore and that Trisha and
Sonam also accompanied them. He along with his son tried to trace Banti. They also went to the
house of Sonam and learnt that Banti had been shot dead and after he was stripped off his wearing
apparels, his dead body was thrown away. They also learnt that a maruti car was lying at Taltala
Police Station which was identified to be the Maruti Car of Ranvijay Singh Rathore. The police
officer also showed them wrist watch, pair of shoes and some photographs, they identified the
articles as belongings of Banti. From Taltala Police Station they went to Tiljala Police Station. From
Tiljala Police Station they were taken to morgue by an officer of Tiljala Police Station where they
identified the dead body to be that of Sandip Julka @ Banti. In course of investigation, police
recorded statement of witnesses and caused arrest of all the accused persons. On completion of
investigation, Charge sheet against accused persons was submitted under Section 302 read with
Section 120B, 364, and 201/34 also under Section 25 (1B)(a) and 27 of the Arms Act. The
appellant/accused along with others pleaded not guilty and claimed to be tried for the charges
framed against them. During trial the co-accused Ranvijoy Singh Rathore absconded from lawful
custody. The prosecution examined in all 22 witnesses in support of the case. The prosecution
mostly relied upon circumstantial evidence to prove their case and on conclusion of the trial, the
learned Trial Court found that Sandip Julka @ Banti's death was homicidal and that he was
murdered by the appellants/accused in furtherance of conspiracy and they threw away his dead
5
body in order to cause its disappearance with the intention of screening themselves from legal
punishment and accordingly, convicted and sentenced them.
Mr. Joymalya Bagchi, learned counsel appearing for the appellant/accused Rashid Alam @
Gabbar, has submitted that the entire prosecution case is based on circumstantial evidence. It is
submitted that according to the prosecution, the appellant/accused was last seen together with the
deceased and the other co-accused at China Garden Restaurant from where they left in a Maruti
car belonging to Ranvijay Singh Rathore. It is submitted that Dipak Agarwal ( P.W.2) friends of the
deceased, and the two waiters i.e. Sonam Gurung (P.W. 5) and Narrayan Thapa (P.W. 10), have
been examined by the prosecution to establish its case. According to him, Dipak Agarwal (P.W.2) is
not reliable, as in his evidence he has stated that whatever he had deposed in his examination-in-
chief was under the threat, coercion, pressure from police officer and so far as the waiters of China
Garden Restaturant P.W. 5 & P.W. 10 are concerned, it is doubtful as to whether they were
factually working as waiters at China Garden Restaurant on the date of incident as prosecution
has not examined any person on behalf of owner of China Garden Restaurant to that effect. It is
submitted that their evidence show that they are totally ignorant about the lay out of the
restaurant and it is highly suspected that they could identify the accused persons, as lot of people
visit the restaurant.
It is the contention of the learned counsel appearing for the accused that all the three
witnesses who claimed to have seen the appellants/accused and the deceased Banti leaving the
restaurant together, have not been able to corroborate each other as to whether the deceased
willingly left with the appellants/accused or was forcibly taken away. It is further submitted that no
T.I. Parade was held and in absence of such T.I. Parade, identification of the appellants/accused by
P.W. 5 and P.W. 10 in court cannot be relied upon. It is submitted that the waiters P.W.5 and
P.W.10 in their evidence have deposed the names of the appellants/accused whom they had seen
for the first time being highly improbable and goes to show they were tutored.
It is further contended by the learned counsel for the appellants/accused that the Trial Court
having acquitted the co-accused Fatman Brooks and Sabnam @ Sonam charged under Section 302
read with Section 120B I.P.C., there was no justification in holding the appellants/accused Rashid
6
Alam @ Gabbar guilty of the said charge, particularly when the evidence against them was also
similar in nature.
It is submitted by the learned counsel appearing for the appellant/accused Rashid Alam @
Gabbar that the police has foisted discovery of .45 colt and cartridges on the appellant/accused
Rashid Alam to be seized at his instance during the course of the investigation but alleged to have
been seized while the appellant/accused was arrested in connection with Burrabazar Police Station
Case No. 167 of 2001 dated 12/07/2001 under Section 302/307/34 I.P.C. and under Section 25
and 27 of the Arms Act and therefore, this may not be construed as discovery under Section 27 of
the Evidence Act as the appellant was not in lawful police custody of the present case when the
firearm is said to be discovered. It is submitted that the alleged discovery has been made without
reference to any specific case under investigation. Further no permission was taken from any
competent authority to take over custody of the appellant/accused for the purpose of such search
and seizure. On the other hand, a separate case being Taltala P.S. Case No. 14 of 2002 dated
11/01/2002 came to be registered under Section 25 (1B) (a) of the Arms Act and in this case, the
learned Metropolitan Magistrate, 7th Court, Calcutta was pleased to acquit the appellant as the
prosecution failed to prove any of the charges. As none of the witnesses supported the prosecution.
In support of his contention the learned counsel appearing for the appellant has cited the
case of Hem Singh @ Hemu V. State of Haryana [ 2009 (4) Supreme 338] and contended that no
reliance can be placed on the identification of accused by the witness for the first time in Court.
The case of Deepak Rajak v. State of West Bengal [(2007) 15 SCC 305] was relied upon to contend
that the accused is similarly placed as co-accused and on same set of facts and on similar
accusation, has to be given the benefit of acquittal as in the case of Fatman-Brooks, Sabnam @
Sonam.
In respect of discovery of the fire arm at the instance of the appellant-accused Abdul Rashid
alias Gabbar it is submitted that he was not in police custody and, therefore, discovery under
Section 27 of Evidence Act cannot be relied upon and the case of Kuruppasamy & anr. v. State
[1989 (Vol.XXXIII) MLJR (Cri) 259] was cited. The case of Aloke Nath Dutta & ors. v. State of West
Bengal [(2008) 2 SCC (Cri) 264] was cited to support the contention that all other portions in a
7
disclosure statement, which do not distinctly relate to the fact discovered, are inadmissible. It is
also pointed out that as there were no signatures and labels on the articles seized by the police
during the course of investigation, particularly ammunitions and fire arms, the same cannot be
relied upon in view of the decision in the case of Amarjit Singh @ Babbu v. State of Punjab [(1995)
SCC (Cri) 828].
The case of Kashmera Singh v. State of Madhya Pradesh [AIR 1952 SC 159] was relied upon
to show that extra judicial confession of the co-accused which are exculpatory in nature cannot be
relied upon.
Mr. Sandipan Ganguly, learned counsel appearing for the appellant/accused Trisha Roy
submits that the appellant/co-accused Trisha Roy has been convicted under Section 120B of the
Indian Penal Code for having entered into a criminal conspiracy along with others for committing
murder of Banti. It is submitted that the prosecution has not been able to establish the charge of
criminal conspiracy against the appellant as the evidence adduced by the prosecution does not
show the complicity of the appellant/co-accused in conspiracy for the commission of murder. On
the count of causing disappearance of evidence also there is no material brought on record to show
that she was in any manner concerned with disposal of the dead body after commission of murder.
It is submitted that the prosecution heavily relies on extra judicial confession of the co-accused
Sabnam @ Sonam for establishing charge of criminal conspiracy to commit murder and for causing
disappearance of evidence which is not admissible.
The learned counsel submitted that in so far as the charge of criminal conspiracy is
concerned star witness of the prosecution P.W.2 Dipak Agarwal has deposed before the Court that
he has been pressurized to give evidence and has completely resiled from his examination-in-chief
and the prosecution has not declared such witness to be hostile and therefore it will not be safe to
rely on his evidence. It is further submitted that so far as the evidence of waiters P.W. 5 Sanam
Gurung and P.W.10 Narayan Thapa is concerned, they do not corroborate each other and further
considering the fact that the prosecution has not brought any evidence on record to show that they
were employed as waiters itself go to show that these are brought up witnesses and therefore
considering the evidence on record it cannot be said that Trisha Roy the appellant/co-accused was
8
in any way concern with the conspiracy to commit the murder of Banti and causing disappearance
of his dead body. It is submitted that even if it is accepted that Trisha Roy was present at China
Garden Restaurant along with the co-accused and accompanied the victim and the co-accused in
the Maruti Car of Ranvijay Singh Rathore that itself does not prove that she was a conspirator. It is
submitted if that was so the Trial Court had acquitted the co-accused Fatman and Sabnam @
Sonam of the charge of conspiracy who were similarly placed and therefore the appellant deserves
to be acquitted.
The learned counsel for the appellant has placed reliance on the case 1. Suryamani Dei and
others vs. State of Orissa AIR 1979 Supreme Court 1534 (para 3) 2. State of U.P. vs.
Sukhbasi and others AIR 1985 Supreme Court 1224 (para 6, 7) 3. Kehar Singh and others vs.
State (Delhi Administration) 1988 Supreme Court Cases (Cri) 711 (pages 714 and 715) 4.
Vijayan vs. State of Kerala 1999 Supreme Court Cases (Cri) 378 (paras 2 and 11) 5. Sanjiv
Kumar etc. vs. State of Himachal Pradesh AIR 1999 Supreme Court 782 (paras 9, 10 and 19) 6.
State of Uttar Pradesh vs. Sattan alias Satyendra and Others (2009) 2 Supreme Court Cases (Cri)
572 (para 33) so as to substantiate his contention that the prosecution has failed to prove the
necessary ingredients of criminal conspiracy against the appellant/accused.
The learned counsel has placed reliance on the case of 1. Anjlus Dungdung vs. State of
Jharkhand 2005 Supreme Court Cases (Cri) 1468 (para 12) 2. Ramreddy Rajesh Khanna
Reddy and another vs. State of A. P. (2006) 3 Supreme Court Cases (Cri) 512 (para 26) 3.
Hazarilal vs. State of Madhya Pradesh (2010) 1 Supreme Court Cases (Cri) 1247 (para 9) and
submits that suspicion, however, strong cannot take place of proof.
The learned counsel further submitted that no reliance can be placed on the so-called extra
judicial confession made by Sabnam to P.W.2 and P.W.3. as it can be seen that though Sabnam @
Sonam had made extra judicial confession to P.W.3 and P.W.4 on 23/05/2010. They failed to
disclose the contents of the said extra judicial confession to police at Tiljala Police Station and
Taltala Police Station. Though they had gone to the said police station after meeting Sabnam @
Sonam. On the other hand, as per evidence of P.W.22 on 24/05/2010 P.W. 3 and P.W. 4 had come
to Tiljala Police Station and disclosed that their son was missing. Though by such time it was
9
known to the said witnesses that their son had died at the hands of Rashid Alam @ Gabbar and
therefore, no case is made out against Trisha Roy (appellant/accused) having entered into a
criminal conspiracy. It is submitted that there is no evidence brought on record to show whether
Trisha Roy was with the co-accused at the time dead body of the victim was thrown. Therefore, the
appellant Trisha Roy deserves to be acquitted.
On the other hand, Mr. Swapan Kr. Mallick, learned counsel appearing on behalf of the State
submitted that the prosecution has established its case against the appellant/accused that they
were part of the criminal conspiracy to eliminate Banti as he had affairs with Trisha Roy
(appellant/accused). It is submitted that the conduct of the accused before the occurrence and
during the commission of murder and subsequently, in disposing of the dead body is sufficient to
establish prior meeting of mind of the appellant/accused and the co-accused in the case. It is
submitted that pursuant to the criminal conspiracy the accused persons gathered at China Garden
Restaurant where they called the deceased Banti. After Banti came along with his friends, they had
dinner together and all the accused persons abducted Banti who was shot dead by Gabbar. It is
submitted that the circumstances brought on record by the prosecution clearly goes to establish
the charge of criminal conspiracy and murder as well as causing disappearance of the dead body
against the appellant/accused. It is submitted that the prosecution having examined P.W.2 Dipak
Agarwal and two waiters P.W. 5 and P.W. 10 who attended the accused and the victims and his
friends at China Garden Restaurant and their evidence clearly goes to show that Banti was invited
at China Garden Restaurant as part of the plan to abduct him and commit his murder. It is
submitted that P.W.3 and P.W. 4 who are father and brother of the victim Banti have given
evidence to the effect that as Banti failed to return home, they went to one of his friend Sabnam @
Sonam and enquired from her who disclosed as to what happened after Banti was taken in the
Maruti Car as the co-accused Sabnam @ Sonam accompanied them and that goes to establish the
prosecution's case that Banti was shot dead by Rashid Alam @ Gabbar at the instance of Ranvijay
Singh Rathore and his body was thrown away after taking away his wearing apparels. It is
submitted that this fact stands established by the discovery of the dead body of Banti further by
the recovery of the firearm (pistol) at the instance of Gabbar and the medical and forensic evidence
10
led by the prosecution supports the prosecution case. The victim was shot dead by firearm
recovered at the instance of Rashid Alam @ Gabbar. It is submitted that the maruti car of the co-
accused Ranvijay Singh Rathore came to be seized which had bullet marks and articles belonging
to the deceased Banti were found in the maruti car which came to be identified by his father and
brother (P.W. 3 and P.W. 4 respectively).
It is submitted that P.W. 2 Dipak Agarwal was threatened with dire consequences due to
which he resiled from truth which he has deposed in examination-in-chief by the prosecution and
therefore, his evidence will have to be accepted in so far as the incident at China Garden
Restaurant is concerned as it stands corroborated by the two other witnesses.
It is further submitted by the learned counsel appearing for the State that after prosecution
having established that the deceased was taken away by Ranvijay Singh Rathore in his maruti car
accompanied by Gabbar, Fatman, Trisha and Sabnam @ Sonam whatever happened thereafter was
within the exclusive knowledge of the accused person and none of the accused in the statement
under Section 313 Cr.P.C. has offered any explanation and have chosen to give false explanation
and therefore, this is an additional link in the chain of circumstances which goes to establish the
complicity of the accused. It is, therefore, submitted that the appeal preferred by Rashid Alam @
Gabbar and Trisha Roy deserves to be dismissed.
The following points arise for our determination :-
i) Whether the prosecution proves that the appellant/accused along with others entered
into conspiracy to commit the murder of Sandip Julka @ Banti or
Whether the prosecution proves that the appellant/accused in furtherance of their
common intention committed murder of Banti.
ii) Whether the prosecution proves that the appellant/accused along with others caused
any evidence of the commission of murder to disappear with the intention of screening
the offender from legal punishment.
It is not much disputed that unnatural death of Sandip Julka @ Banti was homicidal.
Biswanath Halder, S.I. of Tiljala Police Station (P.W.1) on receiving the message while he was
11
on R.T. Mobile duty reached the spot i.e. E. M. Bye Pass near the Matangini Colony and found a
fair complexioned male body nearly 5'8'' height lying on the east side of the road i.e. E. M.
Bye Pass. He has stated that the body was found lying on chest and that was fully naked and the
person appeared to be aged about 34/35 years. On examining the body, he found injuries on his
chest in the right side and that injury appeared to be caused by fire arms. He also noted another
injury below the left ear, and another injury on the back side of the head and two cut injuries were
also found on the eye brows of both eyes. Blood was found oozing out from the wounds. Therefore
after forwarding his report which was registered as an F.I.R (Ext. 1) at Tiljala Police Station. He
conducted inquest over the dead body in the presence of witnesses. After completing the inquest
report photographs of the dead body were taken, the dead body was sent to the morgue at Alipore.
The dead body was identified at morgue by Narendra Kr. Julka P. W. 3 (father of the deceased) and
Rakesh Julka P.W.4 (brother of the deceased) at the morgue as that of Sandip Julka @ Banti.
The post mortem was conducted over the dead body by P.W. 9 Dr. Pulin Behari Das on
23/05/2001 at 5.P.M. He has deposed before the Court. On superficial examination and dissection
he found the following injuries over the person of the dead body.
1.Abrasion over right side of frontal region measuring 3"X 3".
2. Abrasion over right side of the nose to right cheek and mandicular region measuring 6" X 2".
3. Abrasion over left side mandicular region to down left side of neck anteriorrally measuring 3" X 1".
4. Abrasion over right shoulder anteriorally measuring 1"X1".
5. Abrasion over right elbow measuring 1" X 1".
6. 10 small abrasions over medial side of right arm-back of right wrist and back of right arm of varying sizes from 1"X ½" to ¼" X ¼" covering an area of 12"
X 2".
7. Abrasion over right side chest wall anteriorally placed was obliquely above down measuring 5" X 1".
8. Abrasion over right flank measuring 1" X ½" placed above down. 12
9. Multiple small abrasion over the right side of abdomen 11 placed irregularly of varying sizes from ½" X ½" to ¼" X ¼" covering an area of 8" X 4".
10. Multiple small abrasions over left side chest wall anteriorally 20 in number of varying sizes from ½" X ½" to ¼" X ¼".
11. Abrasion over left side lumber region placed side to side measuring 4" X 1".
12. Bruises over left side frontal left temporal and left occipital region measuring 8" X 6"
13. Bruises over right side of occipital region measuring 4"X4".
14. Bruises over right side chest wall upper part measuring 6" X 4".
15. Bruises over right flank measuring 8" X 6".
16. One gun shot would at entrance with evidence of scorching, singing blackening, contused lacerated and inverted in skin margin placed brain deep - on direction and tracing the tract of the wound. It is found to have fiercing skin muscle tissues fracture of mastoid bone-covering membrane of the brain through and through left hemisphere of brain and right hemisphere of the brain through and through and again covering membrane of the brain through and through which fracture of right parieto occipital bone through and through then finally coming out over the area making an wound 1"X1" into brain deep with evidence of everted skin margin - the tract and of the wound is found to have extra vaceted blood clot and is directed from left to right obliquely and backwards.
17. One gun shot wound of entrance with the evidence of scorching singing blackening abravated contused lacerated and inverted skin margin placed over right side chest wall just below right clavicle 2 X ½" right of midline measuring ½" X ½" into cavity deep- on dissection and tracing the tract of the wound it is found to have piercing skin muscles fracture tissues fracture of 2nd rib on the right side anteriorally - plura through and through upper lobe of right lungs through and through obliquely downwards and backwards 13 again plura through and through - fracture of 7th and 8th rib of the back side through and through and finally coming out just below the angle of right scapula making an would 1" X 1" into cavity deep with evidence of everted skin margin the tract of the wound is found to have extra vaceted blood clot. The abrasion are non scabbed. The bruises are of red in colour. All the injuries show evidence of vital reaction and no other mark of injury is found given after careful examination and dissection and death in my opinion was due to effect of the gun shot injury as stated above - ante-mortem and homicide in nature. Stomach and it is contains mucoid fluid about ½ ounce with smell like that of alcohol. He prepared P.M. report in the same mechanical process by using carbon copy.
The carbon copy of the P.M. report (Exbt.7) prepared and signed by him. Two gun shot injuries No. 16 and 17 as he found are sufficient to cause death in ordinary course of nature. Other injuries including bruises and abrasions (15 in number) as he found could be caused due to any type of hard and blunt impact like scuffling, fist and blows inflicted, etc. These gun shots appear to be made from a very close range.
Therefore prosecution has established that the dead body of an unknown person found lying naked having gun shot injury was that of Sandip Julka @ Banti and in the opinion of P.W. 9 Dr. Pulin Behari Das death was due to effect of gun shot injury which was ante-mortem and homicidal in nature.
The genesis of the prosecution case can be traced with the calling of deceased Sandip Julka @ Banti by the co-accused Ranvijoy Singh Rathore (absconding accused) to come over to China Garden Restaurant of China Town. This was on 22/05/2009 on about 9-30 P.M. and Banti received a message from Ranvijoy Singh Rathore while he was sitting at his home along 14 with Dipak Agarwal (P.W. 2), Sanjoy Roy, Firdouse Alam and Imtiaz. He then informed his father Narendra Kr. Julka (P.W. 3) that Ranvijoy Singh Rathore has called him at China Garden Restaurant of China Town, he would not take dinner in the house. Sandip Julka @ Banti along with his friends went to China Garden Restaurant by Taxi. On the first floor they found, Ranvijoy, Trisha Roy and Sabnam @ Sanam was sitting along with two persons and taking food. Sandip Julka @ Banti and friends were introduced by Ranvijoy Singh Rathore to Fatman and Abdul Rashid @ Gabbar and asked them to join for food. Thereafter there was altercation between Sandip Julka and Ranvijoy Singh Rathore. The appellant/accused Abdul Rashid @ Gabbar took out a fire arm and kept the same on the table and asked Banti to have food without any word and told him "enjoy". After eating of food was over, bill was paid by Ranvijoy Singh Rathore and Ranvijoy Singh Rathore, while going out with Trisha, Sabnam @ Sanam, Fatman asked Banti to accompany them. Banti agreed to go with them and all left in a maruti car which was driven by Ranvijoy Singh Rathore. The other friends of Banti i.e. Dipak Agarwal (P.W. 2), Firdos Alam, Imtiaz, Sanjoy Roy, left for their respective residence. It is on the next day when Banti did not come back that his father Narendra Kr Julka started making enquiry with relatives and friends of Banti. They learnt from his friends that after dinner Banti had left with Ranvijoy Singh Rathore in his maruti car accompanied by Trisha Roy, 15 Sanam, Gabbar and Fatman. Therefore, he along with other son Rakesh Julka (P.W. 4) went to the house of Sanam at Aghamandi St. situated within the Taltala Police Station. There they learnt that Banti was shot dead and his dead body has been thrown along E.M. By Pass. They also learnt that Ranvijoy Singh Rathore's maruti car was lying in Taltala Police Station and therefore, they went to Taltala Police Station where they were shown the car and also a wrist watch (Material Exbt. 4) and shoes (Material Exbt. 3). From Taltala P.S. they went to Tiljala P.S. for the purpose of identification of dead body they were taken to morgue for post-mortem examination by officer of the police station when they identified the dead body to be that of their son Sandip Julka @ Banti. Rakesh Julka (P.W. 4), brother of the deceased gave a report (Exbt. 5). The aforesaid facts have been brought on record by the prosecution by examining P.W. 2 Dipak Agarwal, friend of Banti and Narendra Kr. Julka, (P.W. 3) father of the deceased and Rakesh Julka (P.W.
4), brother of the deceased.
On last seen together, the presence of all these persons at China Garden Restaurant in China Town also stands established by examining Sonam Gurung (P.W. 5) and Narayan Thapa (P.W. 10), waiters of China Garden Restaurant who gave evidence, that on 22/05/2001 between 9 to 10 P.M. Trisha Roy and Bijoy had come to China Garden Restaurant followed by Sanam, Fatman and Gabbar. Thereafter Banti reached there along with his 16 friends. Sonam Gurung served them food. Sonam Gurung (P. W 5) and Narayan Thapa (P.W. 10) attended them at the China Garden Restaurant. Sonam Gurung has stated that they took food, Banti was taken away by Ranvijoy, Fatman and Gabbar by actually holding by his collar of Banti's shirt whereas Narayan Thapa has described the incidence that Banti was dragged out by catching hold of the collar of his shirt and by pointing pistol at him and as identified them to be accused Gabbar and accused Fatman in the court.
Their evidence is assailed by the learned counsel appearing for the appellant/accused Gabbar on the ground that prosecution has led no evidence to show that they were employees of China Garden Restaurant and further that they could not have identified the accused persons by names, which shows that they are tutored witnesses of the prosecution. These two witnesses, P.W.5 and P.W.10, who were at the relevant time working as waiters in China Garden restaurant, cannot be doubted, merely because no responsible person from the said establishment was examined. On the other hand, their evidence is quite natural and stands corroborated by Dipak Agarwal (P.W.2) who was present at the relevant time. These witnesses have also identified the persons who were present in the restaurant by pointing at them in Court and, therefore, names of accused persons are recorded in their deposition by the trial Court and merely no Test Identification Parade 17 was held will not render their evidence inadmissible as they are witnesses to the occurrence and had sufficient time to see and observe the conduct of the accused, the deceased and other persons who had dinner at restaurant and spent considerable time. In so far as P.W. 2 Dipak Agarwal is concerned, it is submitted that this witness is totally unreliable and in respect of the fact that in his cross-examination-in-chief he has deposed that thereafter he has stated during examination-in-chief was in threat, coercion and pressure from police officers. Evidence of P. W. 2 would be highly unsafe. Therefore no reliance can be placed on such evidence.
On carefully going through the evidence of these witnesses Dipak Agarwal (P.W. 2), Narendra Kr. Julka (P.W. 3), Rakesh Julka (P.W. 4), Sonam Gurung ( P.W. 5) and Naraya Thapa (P.W. 10) what we find is that the prosecution has been able to establish that Ranvijoy Singh Rathore, Trisha Roy and Sanam were well-known and friends of Sandip Julka, Dipak Agarwal (P.W.
2) so also Firdouse Alam, Imtiaz and Sanjoy Roy (not examined). Further there was a love affair between Sandip Julka and Trisha Roy and Trisha Roy also had a affair with Ranvijoy Singh Rathore. Trisha Roy's affair with Sandip Julka was not liked by Ranvijoy and he wanted to remove Sandip Julka from his way and that is how on the fateful day i.e. 22/05/2001 he invited Sandip Julka @ Banti to China Garden Restaurant who visited the place along with Dipak Agarwal and others where they were introduced to 18 Abdul Rashid @ Gabbar and Fatman. In the said meeting Sandip Julka @ Banti, Ranvijoy Singh Rathore had an altercation and after being threatened Abdul Rashid @ Gabbar with the pistol they quietly finished their dinner and Sandip Julka was taken away by Ranvijoy Singh Rathore with the help of Fatman and Gabbar in his maruti car. Therefore this clearly establishes that Sandip Julka was last seen together with Ranvijoy Singh Rathore who took him away in his maruti car accompanied by Fatman, Gabbar, Trisha and Sanam. Dipak Agarwal (P.W. 2) is a witness who is a friend of Sandip Julka and belongs to a respectable family. In the course of investigation, not only his statement came to be recorded by the police but his statement under Section 164 Cr.P.C. came to be recorded by Shri Arpan Kr. Chatterjee (P.W. 18), Judicial Magistrate, 6th Court at Alipore on 25/05/2001. Dipak Agarwal did not lodge any protest when the statement came to be recorded under Section 164 Cr.P.C. that he is pressurized/threatened by the police to give his statement under Section 164 Cr.P.C. Further when his examination- in-chief came to be recorded during trial, at that time he did not feel it necessary to inform the trial court that he is pressurized to give false evidence in court. It is only after his examination-in-chief was concluded on 06/04/2002 and the defence lawyer took adjournment on personal ground and it is on 08/05/2002 when he was cross-examined on behalf of the accused Rashid Alam @ Gabbar and the same was adopted by all other 19 accused persons that he disclosed to the court whatever he has stated in his examination-in-chief was as per instructions of the police and he has no personal knowledge of what he deposed on 04/04/2002 i.e. at the time of his examination-in-chief clearly goes to show that this witness has been tampered on behalf of the accused otherwise considering the family background of the witness and the several opportunities he had to protest if he was actually pressurized or threatened by the police to state about the events leading to Banti's murder and even for identifying the car and other articles i.e. personal belonging, pistol and fire arm, but he never made any complaint or any grievance before any authority. This does not help the defence in any manner now they cannot take advantage of this fact that the witness has gone topsy-turvy. On the other hand, his evidence that is part of the examination-in-chief stands corroborated by P.W. 3 Narendra Kr. Julka, P.W. 4 Rakesh Julka, P.W. 5 Sonam Gurung and P.W. 10 Narayan Thapa. In respect of the fact that he was in the house of Sandip Julka @ Banti when telephone call of Ranvijoy was received by his friend Sandip Julka then all accompanied Sandip Julka and went to China Garden Restaurant where they met Ranvijoy, Trisha, Sanam, Fatman and Rashid Alam @ Gabbar and that Sandip Julka was taken away in maruti car by Ranvijoy accompanied by Rashid Alam @ Gabbar, Fatman, Trisha and Sanam. We find no reason to disbelieve the evidence of relatives of Banti i.e. his father and brother so 20 also the two waiters at China Garden Restaurant of China Town. The prosecution having established that Ranvijoy had taken away Sandip Julka @ Banti in his maruti car on the fateful night. Thereafter on the next day in the morning his naked dead body was found clearly establishes involvement of the accused persons.
It has come in the evidence of Sub-Inspector Mr. Pulak Kr. Das (P.W. 13) that following the arrest of appellant/accused Rashid Alam @ Gabbar in connection with Burrabazar Police Station Case No. 167 dated 12/07/2001 under Sections 302 and 307/34 I.P.C. and 25 & 27 Arms Act. The Deputy Commissioner of Police (Central) Mr. Zulfikar Hassan formed a team of investigation and Rashid Alam @ Gabbar was interrogated by several officers including S.I. Pulak Kr. Das. According to S.I. Pulak Kr. Das (P.W. 13) in the statement, the appellant/accused Rashid Alam @ Gabbar disclosed that he has a .45 pistol with magazine and 7 pieces of .45 bullets that he would show and bring out the same if he was allowed to lead the police. Accordingly, he led them to 4/1, Uma Das Lane, Taltala Police Station, Calcutta and he brought out the .45 pistol along with 7 pieces of .45 bullets. From inside the gap between the cup-board and the roof and handed over the same to him. He seized the said fire arms and bullets in the presence of two witnesses viz. Bijoy Kr. Poddar and Md. Sabbir and prepared a seizure list on which the witnesses and accused Gabbar have signed. He packed, 21 sealed and labelled the seized arms and ammunitions. The seizure list (Exbt.
18) also signed by him. The statement of accused Rashid Alam @ Gabbar recorded by him is Exhibit 19 and the seized .45 pistol along with magazine is material exhibit V and those 7 pieces .45 bullets are material exhibit XIV. In the court, he has identified accused Rashid Alam @ Gabbar at whose instance fire arms and ammunitions came to be seized. It has come in his evidence in respect of the seizure he has lodged a complaint to the Officer- in-Charge of Taltala Police Station which is exhibit 21. This witness has been thoroughly cross-examined on behalf of the accused and an attempt was made to demonstrate that the fire arm and cartridges had been planted. The discovery has been foisted on the appellant/accused Rashid Alam @ Gabbar. The authority of the officer to take the appellant/accused in custody on the relevant date i.e. 10th December, 2001 and the interrogation accused by him was also assailed as illegal. The witnesses have explained under what circumstances the appellant/accused was arrested and how the discovery has been made and further the overwriting in the seizure list as the description of the weapons in the General Diary Entry (Entry No. 1009) was corrected. The fact remains that the fire arms and ammunitions produced before the court where discovered at the instance of the appellant/accused. The prosecution has examined another witness S.I. Buddhadeb Kundu (P.W. 14) to corroborate S.I. Pulak Kr. Das who has 22 stated before the court i.e. on 11/01/2002 he was attached to Taltala Police Station. One S.I. Pulak Kr. Das of Hare Street Police Station came to Taltala Police Station and submitted a written complaint addressing to Officer-in- Charge, Taltala Police Station along with two sealed packets, one packet containing arms with magazines and another packet containing ammunitions and a seizure list and one accused Rashid Alam @ Gabbar was also produced before him. Therefore on permission of the Officer-in-Charge, Taltala Police Station, he filled up a formal F.I.R. and signed it and took the accused Gabbar in police custody of Hare Street, as per the order of superior officer. Thereafter, he accompanied S.I. Pulak Kr. Das and went to 4/1, Uma Das Lane, Calcutta. He had identified the appellant/accused Gabbar in the court.
It is contended by the learned counsel for the appellant/accused that on the basis of the F.I.R. a separate case being Taltala P.S. Case No. 14/02 dated 11/01/2002 came to be registered under the Arms Act and the learned Metropolitan Magistrate, 7th Court, Calcutta was pleased to acquit the appellant/accused, as the prosecution failed to prove any of the charge and therefore, the appellant/accused cannot be tried and convicted for the same offence.
We find that this contention on behalf of the appellant/accused that the discovery of .45 pistol and cartridges at the instance of the 23 appellant/accused on his being arrested in some other offence cannot be used in the trial of this case and the fact that the appellant/accused was tried for having been found in possession of fire arms and ammunitions, in contravention of the Arms Act and acquitted of the said charge cannot be tried again in this case for the same offence cannot be accepted. It is a settled law that arrest and custody need not be in respect of the offence under investigation, there are several instances where a suspect on being arrested in respect of an offence under investigation may spill the beans of his involvement in other cases. Similarly, the police officer investigating an offence may interrogate the suspect who may be arrested in some other cases by different police stations. Therefore, such interrogation of an accused cannot be construed as without any authority in law and therefore for the purpose of investigation arrest and custody need not be different in respect of the offence under investigation. According to the prosecution, the appellant/accused on being arrested in connection with Burrabazar Police Station Case No. 167 dated 12/07/2001 under Section 302 and 307/34 I.P.C. and 25 & 27 of the Arms Act was interrogated by several police officers and for that purpose the Deputy Commissioner of Police (Central) Mr. Zulfikar Hassan had formed a team of the investigation, goes to show that the appellant/accused was suspected for having committed more than one offence in the jurisdiction of different police stations. It is brought on record 24 by the prosecution that an interrogation by S.I. Pulak Kr. Das (P.W. 13), he was able to discover the .45 pistol and cartridges at the instance of the appellant/accused Gabbar which ultimately was found to have been used for committing murder of the victim in this case i.e. Sandip Julka @ Banti being a distinct offence and therefore, the other objection raised by the learned counsel for the appellant/accused that he cannot be tried for the same offence for which he was acquitted also do not come in the way of the prosecution in proving their case against the appellant/accused by establishing the discovery of the fire arms and ammunitions (Material Exhibits 5 and 14 respectively). We do not think that on interrogating the accused arrested in some other case and the accused leading to discovery of fire arms and ammunitions which were used for killing Banti will vitiate the evidence so collected. The test of admissibility under Section 27 being the discovery of a fact from the information given by the accused, it was immaterial whether the information came from a person not in custody in the case under investigation.
The fire arms and ammunitions (Material Exhibits 5 & 14 respectively) seized at the instance of the appellant/accused were sent to Forensic Science Laboratory. It came to be examined by Partha Sinha (P.W. 17) who has deposed before the court that in connection with Tiljala P.S. Case No. 146 dated 23/05/2001, he examined one pistol received by the Laboratory 25 in sealed condition. It was having tampering marks on the right lower horizontal material part about trigger and butt. No serial number could be deciphered on the tampered part or any part of the pistol of which he has given the report which is exhibit 29. The pistol also came to be examined in the context of its use in the maruti car by Mr. Ardhendu Sengupta, Senior Scientific Officer in the Ballistic Department of Forensic Science Laboratory. Mr. Ardhendu Sengupta (P.W. 19) has stated in his evidence that he received memo no. Nil dated 16/07/2001 of Inspector-in-Charge, Tiljala Police Station, South 24 Parganas in connection with Tiljala P.S. Case No. 145/ 01 dated 23/05/2001 under Sections 302, 201/34, 109 and 120B of I.P.C. He has deposed before the trial Court that "On 16/07/2001 I was in the same post and in the same place. Memo No. Nil dated 16/07/2001 of Inspector-in-Charge of Tiljala P.S., South 24 Parganas in connection with the Tiljala P.S. Case No. 145 of 2001 dated 23.5.01 under Sections 302/201/34/109/120B of I.P.C. was received by me.
On 18.7.01 afternoon I examined one reddish brown Maruti Suzuki 800 DX car bearing registration No. W.B.02H 7318 jointly with the Assistant Director of the Biology Division of the Laboratory with two assistants at the premises of Parma Investigating Centre on Eastern Metropolitan Bypass. 26 The rectangular portion of the glass window screen of the right rear door was found shattered and a large number shattered chips were found strewn on the right rear floor area. The right corner area of the rear seat was found brown strained.
One hole of size 0.45 inches X 0.45 inches was found on the inner side of the right rear door 5'' below the lower horizontal boundary of the window 21"
above the floor level and 29" above the ground level. This hole continued through layers of cotton, rubber, foam and synthetic seats and strew board type of materials.
Another hole of seize 0.52" X 0.52" was found on this door on its outer side 21" above the floor level and 28" above the ground level. These two holes placed nearly of the middle of the door were marked by me as small 'h' and Capital (H) respectively.
Cuttings and acid sweats around these holes were collected and preserved in polyp arches.
One small shirt button was found lying on the floor at the rear cabin. Blood was detected in the rear cabin as well as above the hole marked small (h) as per report obtained from the Assistant Director of Biology Department.
The Investigating Officer was instructed to set the button with other relevant articles seized in this case-connection to this laboratory for 27 necessary examination. The hole cutting/swabs were being referred to a suitable laboratory for detection of traces due to gun shot, if any. From the nature of the two holes it can be stated that they were caused due to impact of a project tile which after hitting the right rear door from its inner side penetrated the inner layer causing the hole small (h) and ultimately made its exit from the outers metallic surface causing the hole (H).
Final report would be furnished after the result of the examination of the hole cuttings/swabs are received.
This is the report (preliminary) report and the report obtained from Bhaba Atomic Research Centre, Mumbai, I prepared a final report. This was in continuation of this office report No. 1712 FSL/BLS/BIO/1627-01 dated 23.8.01 in connection with the same Tiljala P.S. Case.
My final report is as follows :-
Cuttings and Acid swabs around the hole marked small 'h' and Capital 'H' and their intermediate materials were referred to Bhaba Atomic Research Centre, Trombay, Mumbai in sealed packets.
The report received from them revealed the presence of traces due to gun shot on them.28
This suggested that the said entry and exit holes marked 'h' and 'H' respectively on the right rear door of the Maruti Car WB 02H 7318 was caused due to gun shot.
This is the final report typed as per my dictation under my supervision and signed by me with my official seal (Ext. 31)"
He further stated that -
This is the additional final report in continuation of this office letter No. 1712/FSL/BLS/1627/01, dated 23.8.01 sent to the Inspector-in-Charge, Tiljala P.S., South 24 Parganas in connection with memo no. nil, dated 16.7.01 relating to the case noted above.
This additional report was signed by me.
It was typed under my supervision at my office and signed by me with office seal (Ext. 32).
In connection with Tiljala P.S. Case No. 146, dated 23.5.01 u/s 302/201 of I.P.C.
One service cover marked D was received in the ballistic division from the biology division of this laboratory in sealed condition 1.8.01. It contained one empty fire case of a .45" Automatic pistol ammunition made in U.S.A. by Federal Cartridge Company which was marked here as D. on microscopic examination, it was found to have been fired through a standard firearm of Calibre .45" auto.29
This is my report typed under my supervision and dictation and signed by me under my official seal (Ext. 33).
In connection with Tiljala P.S. Case No. 146, dated 23.5.01 three paper covers marked 'A', 'B' and 'C' were received in this division in the Forensic Science Laboratory in sealed condition.
Each of the covers marked A and B contained one sealed packet marked A and B respectively bearing seal of Hare Street P.S. Calcutta and signatures of witness and the accused. The cover marked C contained one sealed packet marked D bearing seal of FSL-BLS WB.
The packet marked A contained one colt .45" M1911 Semi-automatic pistol made by Colt's Patent fire Arms Mfg. Co. U.S.A. which was marked here as A. It was fitted with an empty magazine.
The packet marked B contained seven rounds of .45" automatic pistol ammunition which were marked here as B1 to B7. The ammunition marked B1 to B5 were made in U.S.A. by Federal Cartridge Company. B6 was a product of Winchester Repeating Arms Company of U.S.A. and the rest B7 was found made in Indian Ordnance Factories.
The packet marked D contained one empty fire case of a .45" automatic pistol ammunition made in U.S.A. by Federal Cartridge Company which was remarked as C/D. This empty case bore the identification mark of examination of the undersigned. It may be mentioned here that this empty 30 case already examined by the undersigned after it was received here earlier as exh. Marked D in connection with Case No. 146, dated 23.5.01 u/s. 302/201/34 of I.P.C. of Tiljala P.S. through memo No. nil dated 29.6.01 of S.D.J.M., Alipore, South 24 Parganas and reported by the undersigned vide this office report No. 1711/FSL/Bio/BLS/1518/01/128/01 dated 23.8.01 (copy enclosed).
Traces of firing were detected inside the pistol marked A, indicating that it was fired through previously.
Test firing and Microscopic Comparison : Selecting at random from B 1 to B 7 the .45" automatic pistol ammunition marked B1 was loaded in the pistol marked A and fired, thereafter as test through it. The test fired empty case was then compared under a comparison microscope with the empty fired case marked C/D in respect of impressions left on them due to firing. It was observed that these impressions were identical with each other. On the basis of above examinations and observations it may be concluded that
1) the .45" pistol marked A was in working order
2) the .45" automatic pistol ammunition marked B1 was live and
3) the .45" empty fire cases marked C/D was fired through the .45"
pistol marked A. 31 The remaining .45" automatic pistol ammunition marked B2 to B7 were in good condition.
The pistol marked A is being sent to Physics division of this laboratory for deciphering of serial number, if any, with request to send its report directly to the forwarding authority.
This is my report typed at my dictation and under my supervision by my signature and signed by me with office seal (Ext. 34).
This is the pistol marked A examined by me (Mat. Ext. V is identified). These are the Seven cartridges marked B1 to B7 examined by me of which B1 is the test fired one (Mat. Ext. XIV identified). This is that Maruti Car examined by me (Mat. Ext. VI is identified). Mr. Ajoy Kr. Ghosh, Assistant Director, Ballistic Department, Forensic Science Laboratory was examined to prove his report relating to the blood detected in Items A Foot mat (Material Exhibit 12) and B-Glass Oil containing P.M. blood (blood sample collected from the dead body of Sandip Julka @ Banti and in his report he stated that on examination, no blood could be detected in Items C, blood was detected in Item A-Foot mat and B-Glass oil. Similarly, samples were sent to Dr. Mrs. Subhra Chakroborty (P.W. 16) according to her exhibit nos. 2343 2829, result of her report indicate that Item Nos. 28 and 29 has stained with human 32 blood, Item No. 28 could not be ascertained and Item No. 29 is stained with human blood of Group-B. We have gone through the evidence of forensic experts namely Mr. Ardhendu Sengupta and others. It is quite clear that the articles seized during the course of investigation by the investigating officer namely S.I. Joydeep Banerjee like the seizure of Maruti car and the articles found therein came to be seized on 25.9.2001 and particularly one empty fire case with mark 45 along with other articles which was done under the seizure list Exbt.16/1 under which 16 articles came to be seized and were sent to the Forensic Science Laboratory for examination. It was found on examination of the articles that the .45" pistol marked 'A' was in working order and the .45" fire cases marked 'C' and 'D' was fired from the .45"
pistol marked 'A' and when comparing with empty fire case of .45"
automatic pistol. He came to the conclusion that it was fired from the .45"
pistol. This empty was seized from the maruti car which is owned by Ranvijay Singh Rathore, the absconding accused. The prosecution case that Sandip alias Banti was shot dead in the maruti car gets sufficiently established due to the finding of the empty of the .45 cartridge and further on examination of the maruti car the forensic experts have found that in the maruti car the hole which was found on the inner side of the right rear door 5" below the lower horizontal boundary of the window 21" above the 33 floor level and 29" above the ground level. This hole contained through layers of cotton, rubber, foam and synthetic seats and strew board type of materials. Another hole was found of size 0.52" X 0.52" was found on this door on its outer side 21" above the floor level and 28" above the ground level.
These two holes placed nearly of the middle of the door were marked by him as small 'h' and capital 'H' respectively.
Further cuttings and acid sweats around these holes were collected and preserved in poly pouches and were referred to a suitable laboratory for detection of traces due to gun shot and after seeing the report from Bhaba Atomic Research Centre, Mumbai he prepared the final report and gave his opinion that the said entry and exit holes marked 'h' and 'H' respectively on the right rear door of the Maruti car WB 027 7318 was due to gun shot. Therefore, the forensic reports sufficiently corroborate the prosecution case that Banti was shot dead in the Maruti car with the .45 pistol. The pistol having been recovered at the instance of Rashid Alam alias Gabbar conclusively goes to prove that Rashid Alam alias Gabbar who has shot dead Banti on the fateful night at the instance of Ranvijay Singh Rathore. The prosecution has also brought on record the motive for murdering Banti. It is the prosecution case that Ranvijay Singh Rathore has developed friendship with Trisha Roy who was friend of Banti and wanted 34 her to discontinue her relationship with Banti. From the evidence on record it is clear that Banti had no desire to leave Trisha Roy in spite of the fact that he got married and therefore Ranvijay Singh Rathore wanted to eliminate Banti for which he hired the services of Rashid Alam and others and invited Banti to China Garden. In spite of persuading Banti to sever his relationship with Trisha Roy and Trisha having expressed her helplessness Ranvijay Singh Rathore thought that the best course will be to eliminate Banti. This was all result of sexual possessiveness and jealousy.
We do not have any hesitation to hold that engagement of Rashid Alam and his friends like Fatman was a result of a conspiracy to eliminate Banti. From the evidence on record it will not be possible to draw a necessary inference that Trisha was party to such an arrangement though the whole conspiracy centers around her relationship with Sandip alias Banti and Ranvijay Singh Rathore who is absconder. There is no evidence whatsoever of any premeditation or of a pre-arranged plan between Trisha and the assailant or Ranvijoy and therefore her presence in the maruti car at the time Banti was shot dead cannot be held sufficient to prove conspiracy or even common intention.
It is doubtful whether she was aware that after Banti was reprimanded by Ranvijay Singh Rathore in the presence of Trisha, Sabnam alias Sonam, 35 Ranvijay Singh Rathore would get Banti killed by Rashid Alam. It has come in evidence after the talks were over Rashid Alam along with Ranvijay Singh Rathore, Fatman dragged Banti and they all took him in the Maruti car accompanied by Trisha Roy and Sabnam alias Sonam. In order to bring on record as to what happened after they left in the Maruti car, the prosecution has placed reliance on the so called extra-judicial confession made by Sonam to the father and brother of Banti i.e. P.W.s 2 and 3 but we find that the same cannot be considered as evidence for two reasons. First, that whatever Sabnam has told to P.W.s 2 and 3 would be hearsay and, secondly, it was exculpatory in nature. The trial Court has rightly discarded this part of the evidence but what we find that the so called extra-judicial confession did leave impression on the trial and thereby influenced the decision of the learned Additional Sessions Judge who gave benefit of the same to two of the co-accused i.e. Fatman and Sabnam alias Sonam but not to Trisha Roy when he held that Fatman and Sonam cannot be held guilty for conspiring to commit murder of Banti but found Trisha Roy being the root cause as guilty of being one of the conspirator. Considering the fact that these two co-accused have been acquitted of the charge of conspiracy and murder but only held guilty for having committed offence under Section 201 read with Section 34 of the Indian Penal Code and their acquittal for conspiracy and murder being not challenged by the 36 State by preferring an appeal, we find no reason why the same benefit should not be extended to Trisha Roy.
There is no evidence laid by the prosecution by way of attending circumstances of incriminating nature to show that Trisha can be held guilty of conspiracy. Therefore, we are persuaded to give her benefit of doubt and hold that the appellant-accused Trisha Roy cannot be held guilty of having committed offence under Section 120B of the Indian Penal Code. However, she cannot be exonerated of the charge of having committed offence under Section 201 read with Section 34 of the Indian Penal Code for which the Court has convicted the other co-accused i.e. Fatman and Sonam who are similarly placed and sentenced them to suffer rigorous imprisonment for 4 years and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for 2 months for committing offence under Section 201 read with Section 34 of the Indian Penal Code. We, therefore, have no hesitation to hold that the trial Court was right in coming to the conclusion that Rashid Alam alias Gabbar was guilty of having committed offence under Sections 302/120B/201 read with 34 of the Indian Penal Code and for having committed offence under Section 25 (1B)(a) and 27 of the Arms Act and we confirm the sentence and dismiss the appeal filed by Rashid Alam alias Gabbar (CRA No.232 of 2004). 37
In so far as Trisha Roy is concerned we find that the conviction for having committed offence under Section 120B of the IPC deserves to be quashed and set aside. Therefore, she is acquitted of the charge of having committed offence under Section 120B of the Indian Penal Code but we uphold the finding of trial Court that she is guilty of having committed offence under Section 201 read with Section 34 of the Indian Penal Code and sentence to suffer simple imprisonment for 4 years and to pay a fine of Rs. 2,000/- in default to suffer simple imprisonment for two months. In case she has already undergone the period of substantive sentence and paid the fine, her bail bonds would stand cancelled if not she should surrender to her bail bonds to undergo remaining part of her sentence. Accordingly her appeal (CRA No.129 of 2004) is partly allowed.
(J. N. Patel, C.J.) I agree.
(Ashim Kumar Roy, J.)