Shyamal Saha & Anr vs State Of West Bengal

2. The sequence of events, as it has unfolded from the evidence of the witnesses, is that on 19th May, 1995 a thermal plant of the Calcutta Electric Supply Company had opened across the river Ganges in Mauza Bhabanipur Char, District Hooghly, West Bengal.

3. Paritosh Saha was with his mother Bidyutprava Saha (PW-5) at about 5.00/5.30 p.m. on 19th May, 1995. Thereafter, he and his nephew Animesh Saha (CW-1) aged about 10 years went for a walk on the banks of the river Ganges where they met Gopal Saha, with whom they struck a conversation. At that time, the appellants Shyamal Saha and Prosanta @ Kalu Kabiraj also came there and called Paritosh to go across the river to see the Char (island). Animesh also expressed his desire to go to the Char but Shyamal asked him to return home.

7. Early next morning on 20th May, 1995 Bidyutprava Saha noticed that Paritosh had not eaten his dinner which she had kept for him. She mentioned this to Amaresh and also informed him that Shyamal and Prosanta had come and met her the previous evening at about 8.00 or 8.30 p.m. During the course of this conversation, Animesh revealed to his father Amaresh that he had seen Paritosh cross the river Ganges the previous evening in a boat along with Shyamal and Prosanta.

10. Sometime in the morning of 21st May, 1995 the corpse of Paritosh was found in the river tied to two iron chairs with a napkin around his neck. The police were informed about the recovery of the dead body and an inquest was carried out and the iron chairs and napkin were seized in the presence of some witnesses. It was noticed that a part of Paritosh’s skin was burnt perhaps due to pouring of acid.

11. On these broad facts, investigations were carried out and Shyamal and Prosanta were charged with having abducted Paritosh and thereafter having murdered him.

14. Feeling aggrieved by their acquittal, the State preferred an appeal before the Calcutta High Court against Shyamal and Prosanta. The appeal was allowed by a judgment and order dated 11th March, 2008.[2] The decision of the Trial Court was reversed and they were convicted for the murder of Paritosh and sentenced to imprisonment for life and a fine of Rs.5000/- each and in default of payment to undergo rigorous imprisonment of one year each.

16. It was also held, on the basis of the post mortem report given by Dr. P.G. Bhattacharya (PW-15) and his testimony that Paritosh died soon after 5.30 p.m. on 19th May, 1995. The High Court came to this conclusion on the basis of the doctor’s statement that the death took place between 65 and 70 hours before he conducted the post mortem examination. Since the post mortem examination was conducted at about 12.00 noon on 22nd May, 1995 working backwards, it appeared that Paritosh died soon after 5.30 p.m. on 19th May, 1995.

32. Under the circumstances, we are unable to agree with learned counsel for the State and are of the opinion that there was really no occasion for the High Court to have overturned the view of the Trial Court which was not only a reasonable view but a probable view of the events.

34. Learned counsel for the State relied on the evidence of Dr. Bhattacharya to submit that Paritosh died between 65 and 70 hours before the post mortem examination was conducted. As observed by High Court, this placed Paritosh’s death soon after 5.30 p.m. on 19th May, 1995. The significance of this is only with respect to the time of death and has no reference to the persons who may have caused the death of Paritosh. The evidence of Dr. Bhattacharya, therefore, does not take the case of the State any further.

Conclusion:

35. The view taken by the Trial Court was a reasonable and probable view on the facts of the case. Consequently, there was no occasion for the High Court to set aside the acquittal of Shyamal and Prosanta. Accordingly, their conviction and sentence handed down by the High Court is set aside. Their appeal against their conviction and sentence is allowed.

February 24, 2014