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Supreme Court of India
Goutam Joardar vs The State Of West Bengal on 7 October, 2021Author: Uday Umesh Lalit
Bench: Uday Umesh Lalit, S. Ravindra Bhat, Hon’Ble Ms. Trivedi
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1181 of 2019
GOUTAM JOARDAR Appellant
VERSUS
STATE OF WEST BENGAL Respondent
WITH
CRIMINAL APPEAL NO.1182 of 2019
KARTICK DAS & ANOTHER Appellants
VERSUS
STATE OF WEST BENGAL Respondent
WITH
CRIMINAL APPEAL NO.1762 of 2019
SHIBU KAHAR @ DODAN @ DHUMA Appellant
VERSUS
STATE OF WEST BENGAL Respondent
AND
CRIMINAL APPEAL NO.44 of 2020
RAJU RABIDAS @ SHERA Appellant
VERSUS
Signature Not Verified
STATE OF WEST BENGAL
Digitally signed by Dr.
Mukesh Nasa
Date: 2021.10.09
Respondent
11:41:32 IST
Reason:
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O R D E R
Criminal Appeals Nos.1181, 1182, 1762 of 2019 and 44 of 2020 are
preferred by accused Goutam Joardar; Kartick Das and Biltu
Bhattacharya; Shibu Kahar @ Dodan @ Dhuma; and Raju Rabidas @ Shera
challenging the common judgment and order dated 13.03.2019 passed by
the High Court of Judicature at Calcutta dismissing the appeals
preferred by said accused and confirming their conviction and
sentence recorded by the Sessions Judge, Malda in Sessions Trial
No.07 of 2012.
The basic facts including the case of the prosecution as are
discernible from the judgment of the High Court are as under:
“Prosecution case as alleged against the appellants is to
the effect that the appellants are dangerous and desperate
men who were terrorising the fish traders in the locality.
Meeting was convened by the merchant association over the
issue and the appellants gave an undertaking that they will
not create trouble. On 29th April, 2011, the appellants
came to the fish stall of one Ajoy Dey, (P.W.1) and his
elder brother Paritosh Dey @ Akal, the deceased herein
ransacked their fish stall and looted money and fish as
therefrom. The matter was informed to the police station as
well as the local traders’ association. Proceeding under
Section 107 of the Code of Criminal Procedure was initiated
against him. Thereafter, the appellants again threatened
the victim and his brother with dire consequences.
Finally, on 8.5.2011 at 6.30 A.M., the appellants accosted
the victim in front of R.S.P. party office and assaulted
him on his neck and shoulder with sharp cutting weapons and
shot at the victim. As a result, the victim died. Over this
incident, his brother Ajoy Dey, P.W.1 lodged first
information report resulting in registration of Balurghat
P.S. Case No.218 of 2011 dated 08.05.2011 under Sections
302/120B of the Indian Penal Code read with Section 27(3)
of the Arms Act.
In the course of investigation, the appellants were arrested
and pursuant to the statement of Goutam Joarder one revolver
with cartridge was recovered. On the statement of Shibu
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Kahar @ Dodon @ Dhuma a dagger and a bhojali were also
recovered. Post mortem was conducted on the body of the
victim and fragment of bullet was recovered from his body.
Ballistic report was obtained with regard to seized fire
arms and the bullet fragment recovered from the body of the
victim. In conclusion of investigation, charge sheet was
filed against the appellants and others. Pursuant to
direction passed by this Court in CRR No.3402 of 2011, the
case was transferred to the Court of Sessions, Malda for
trial and disposal. Charges were framed under Sections
302/120B IPC and under section 27(3) of the Arms Act. Co-
accused Khokon Karmakar and Anay Upadhyay assailed the
framing of charge before this court in CRR No.2559 of 2012
and a learned Judge of this court by order dated 06.08.2012
quashed the charges framed against the said co-accused. In
the course of trial, prosecution examined 37 witnesses and
exhibited number of documents. Defence of the appellants
was one of innocence and false implication.”
Thus, six persons were tried in Sessions Trial No.07 of 2012 on
the file of the Court of Sessions Judge, Malda in respect of the
offences punishable under Sections 302/120B of the Indian Penal Code,
1860 read with Section 27(3) of the Arms Act, 1959.
The Trial Court by its judgment dated 14.12.2012 accepted the
case of the prosecution and convicted accused Goutam Joardar, Kartick
Das and Biltu Bhattacharya, Shibu Kahar @ Dodan @ Dhuma and Raju
Rabidas @ Shera, but acquitted accused Babun Sarkar. By order dated
15.12.2012, the Trial Court sentenced the accused as under:
“That the convict Goutam Joarder is hereby sentenced to
suffer imprisonment for life and pay a fine of Rs.5,000/-
(five thousand), in default to pay fine to S.I. for six
months more for the offence u/s 302/34 of the I.P.C.
That the convict Shibhu Kahar @ Dodan @ Dhuma is hereby
sentenced to suffer imprisonment for life and to pay a fine
of Rs.5,000/- (five thousand), in default to pay fine to
suffer S.I. for six months more for offence u/s 302/34
I.P.C.
That the convict Kartic Das is hereby sentenced to suffer
imprisonment for life and to pay a fine of Rs.5,000/- (five
thousand), in default to suffer S.I. for six months more
for the offence u/s 302/34 I.P.C.
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That the convict Raju Rabidas @ Shera is hereby sentenced
to suffer imprisonment for life and to pay a fine of
Rs.5,000/- (five thousand), in default to pay fine to
suffer S.I. for six months more than the offence u/s 302/34
I.P.C.
That the convict Biltu Bhattacharya is hereby sentenced to
suffer imprisonment for life and to pay a fine of Rs.5,000/-
(five thousand), in default to pay fine to suffer six months
more than the offence u/s 302/34 of the I.P.C.”
Being aggrieved, the convicted accused preferred Criminal
Appeals Nos.539 and 627 of 2013 and Criminal Appeal Nos.112 and 153
of 2014 in the High Court. By its judgment dated 13.03.2019, which
is presently under challenge, the High Court affirmed the view taken
by the Trial Court and dismissed said appeals.
Mr. Raj Kumar Gupta, learned Advocate appearing for the
appellants invited our attention to the testimonies of two eye
witnesses, namely, PW18 and PW19 and submitted that the delay in
recording their statements under Sections 161 and 164 of the Code of
Criminal Procedure, 1973 respectively would be fatal to the case of
the prosecution. It was submitted that no explanation was forthcoming
why there was delay in recording their statements. Reliance was
placed on the decisions of this Court in Balakrushna Swain v. State
of Orissa, (1971) 3 SCC 192; Alil Mollah & Another v. State of West
Bengal, (1996) 5 SCC 369; and, Shahid Khan v. State of Rajasthan,
(2016) 4 SCC 96.
It was further submitted by Mr. Gupta that apart from the
testimonies of said two witnesses, there was nothing on record to
justify the conviction of the appellants.
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Ms. Liz Mathew, learned Advocate appearing for the State on the
other hand submitted that the terror unleashed by the accused was of
such magnitude that the concerned witnesses had fled away in fear
and that it was only after the appropriate steps were taken by the
investigating machinery including the arrest of the accused that the
witnesses came forward.
Ms. Mathew also submitted that apart from the eye-witness
account, there were supporting pieces of material in the form of
recoveries which were conclusive in nature.
It is true that there was some delay in recording the statements
of the concerned eye-witnesses but mere factum of delay by itself
cannot result in rejection of their testimonies.
The material on record definitely establishes the fear created
by the accused. If the witnesses felt terrorised and frightened and
did not come forward for some time, the delay in recording their
statements stood adequately explained. Nothing has been brought on
record to suggest that during the interregnum, the witnesses were
carrying on their ordinary pursuits.
Thus, the eye-witness account unfolded through PW18 and PW19
cannot be discarded. We have gone through their testimonies and are
convinced that their statements were cogent, consistent and
trustworthy.
We, therefore, reject the submissions advanced by Mr. Raj Kumar
Gupta, learned Advocate. On merits, we do not find any reason to take
a different view in the matter.
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Affirming the view taken by the Trial Court and the High Court,
these appeals are dismissed.
……………………J.
(UDAY UMESH LALIT)
……………………J.
(S. RAVINDRA BHAT)
……………………J.
(BELA M. TRIVEDI)
New Delhi,
October 7, 2021.
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