ANJAN DASGUPTA versus THE STATE OF WEST BENGAL & ORS.
[2016] 12 S.C.R. 90, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Facts
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[2016) 12 S.C.R. 90 
ANJAN DASGUPTA 
v. 
THE STATE OF WEST BENGAL & ORS. 
(Criminal Appeal No. 298 of2006) 
NOVEMBER25, 2016 
(PINAKI CHANDRA GHOSE AND ASHOK BHUSHAN, JJ.] 
Criminal Law: 
Murder Case - Re-appreciation of evidence - Two possible 
views - Prosecution case that the victim was shot at, on the indication/ 
instruction of appellants-accused -
Trial court acquitted appellants 
- High Court after re-appreciating the evidence set aside the order 
of acquittal of appellants - On appeal, held: While entertaining an 
appeal against acquittal, if two views are possible on appreciation 
of evidence the view in favour of the accused has to be given 
importance - In case an order of acquittal has been made 011 
improper and erroneous appreciation of evidence, it is always open 
to the court of appeal to make proper and reasonable appreciation 
of evidence and differ from the order of acquittal - On facts, 
discarding of evidence by the trial court was on flimsy grounds and 
based on surmises and conjectures which was correctly re-
appreciated by the High Court - High Court after re-appreciating 
the evidence rightly came to the conclusion that the occurrence as 
well as participation of appellant was proved - Penal Code, 1860 
- s.302 rlw s.34, s.212 - Arms Act - ss. 25, 27 - Code of Criminal 
Procedure, 1973 - s.164. 
FIR - Ante-dated and ante-timed FIR - Allegations of - Held: 
On facts, PW-29, AS! proved the FIR and also his signature thereon 
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He denied the suggestion that the FIR was written subsequently -
Thus, no case of ante-dating of the FIR - Further, no inconsistencies 
in the FIR so as to come to the conclusion that the FIR was ante-
timed. 
FIR - Delay in dispatching FIR from Police Station to 
Magistrate - Effect of - Held: It is only extraordinary and 
unexplained delay, which may raise doubts regarding the authenticity 
of the FIR - In the present case, where recording of FIR itself has 
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ANJAN DASGUPTA v. STATE OF WEST BENGAL 
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been proved and accepted by the trial court also, mere delay in 
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dispatch of the FIR from the police station to the Magistrates' court 
has no bearing on the basis of which any adverse presumption can 
be drawn: 
Investigation - Criminal investigation - Held: Receipt and 
the recording of FIR is not a condition precedent for setting in motion 
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of criminal investigation - On facts, when infor111ation was received 
that the victi111 was shot dead, police was duty bound to start 
investigation. 
Dismissing the appeal, the Court 
HELD: 1.1 There is e~i~ence of PW 1 (son of victim) that 
he went to the police station between 7.30/8.00 PM and the First 
Information Report was written by PW 5 on his dictation. Both 
the above facts have been proved by the statement of PW 1 and 
PW 5; both have signed the written complaint. Further, ASI PW 
29 proved the recording of the FIR on the basis of written 
complaint given by son of victim-deceased. No suggestion was 
put to PW 29 regarding the date or time of recording of the FIR. 
PW 29 has proved the FIR, he further proved that he received 
the FIR on 16th June, 2000, he proved his signature on th~ FIR 
also. He denied the suggestion that FIR was written on 
subsequent to 161• June, 2000. Thus there is no case of ante-
dating the FIR, even the trial court did not accept the submission 
that FIR was ante-dated. [Paras 12, 13] [97-F-ll; 98-A] 
1.2. In the present case, the FIR was
registered before 
the inquest report of dead body started. The evidence indicates 
that information of death was received by the police station before 
17 .15 hours and police officials arrived at the spot immediately 
and the 1.0. arrived at the spot at 17 .45 PM, by that time other 
police officials had already reached. The receipt and the recording 
of First Information Report is not a condition precedent for setting 
in motion of a criminal investigation. When the information was 
that the victim was shot dead, police was duty bound to start 
investigation. Though much UJ1ph~sis has been laid down by 
the appellant on the fact that "time 17.35" was noted in the FIR, 
however, from the cross-examination of ASI, it does not appear 
that any question was asked regarding the recording time 17.35 
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in the FIR. The possibility cannot be ruled out that while 
registering the FIR on the basis of written complaint, the ASI 
recorded the time when he received the information in the 
police station of the death of the victim. In any view of matter, 
the above in no manner diminishes the value or credibility of 
the FIR. The mention of the time at 17.35 can be treated as the 
time of receipt of the information of the offence in the police 
station and there is no such inconsistencies in the FIR so as to 
come to the conclusion that FIR was ante-timed. [Paras 16, 17, 
18) 
(99-C-D, F-H; 100-A-C] 
1.3. The I.O. after receipt of the information of an offence 
by R. T. message had arrived at the scene on 17 .40 hours, which 
clearly proves the prompt commencement of the investigation. 
FIR was dispatched on 22nd June, 2000 which has also been 
accepted by trial court. When no questions were put to 1.0. in 
his cross-examination regarding the delay in dispatch, at the 
time of hearing, the accused cannot make capital of the said 
delay in forwarding the FIR. The present is the case, where 
recording of the FIR on 16th June, 2000 itself has been proved, 
accepted by the trial court also, thus mere dispatch of the FIR 
on 22nd June, 2000 from the police station to the Magistrates' 
Court has no bearing on the basis of which any adverse 
presumption can be drawn. It is thus clear that the FIR was 
genuine FIR and
trial court committed an error in drawing 
adverse inference against the prosecution and refusing to attach 
value to the FIR. [Paras 20, 21) [100-F-H; 101-A-B) 
Arren Joseph alias Current Kunjukunju and Ors. v. The 
State of Kera/a 1973 (3) SCC 114 : 1973 (2) SCR 
16; Rabindra Mahto and Anr. v. State of Jharkhand 
(2006) 10 SCC 432 : 2006 (1) SCR 248 - relied on. 
Pala Singh v. State of Punjab (1972) 2 SCC 640 : 1973 
(1) SCR 964; - referred to. 
2. In facts and circumstances of the case, the appreciation 
of evidence of eye-witnesses and discarding of the evidences 
by the Sessions Judge was on flimsy ground and based on 
surmises and conjectures which has been correctly re-
appreciated by the High Court. The High Court after re-
ANJAN DASGUPTA v. STATE OF WEST BENGAL 
appreciating the evidence has rightly come to the conclusion 
that the occurrence as well as participation of the appellant 
was proved. The High Court was conscious that the case where 
acquittal has been made, while entertaining an appeal over an 
order of acquittal, if two views are possible on making proper 
appreciation of available evidence, the view going in favour of 
accused has to be given importance. It is well settled that in 
case where an order of acquittal has been made on improper 
and erroneous appreciation of evidence, it is always open to 
the court of appeal to make proper and reasonable appreciation 
evidence and differ from the order of acquittal and in such 
event, it shall never hesitate in reversing the same. 
The 
findings and conclusion recorded by the High Court are based 
on the correct appreciation of evidence and do not suffer from 
any error. The judgment of the High Court reversing the 
acquittal recorded by Sessions Judge needs no interference. 
[Paras 32, 35, 36 and 37) (103-E; 104-D, F-H; 105-B-C) 
Case Law Reference 
1973 (2) SCR 16 
1973 (1) SCR 964 
~ 2006 (1) SCR 248 
relied on 
referred t!) 
relied on 
Para 16 
Para 19 
Para 20 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
298of2006. 
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From the Judgment and Order dated 16.02.2006 of the Division 
Bench of the High Court at Calcutta in Government Appeal No. I 0 of 
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2002 and C.R. R. No. 2263 of2003. 
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Kapil Sibal, Sr.
Adv., D. N. Ray, Aamir Khan, Aadit Pujari, 
Sangram Singh, Ms. Palla vi Langar, Advs. for the Appellant. 
Mrinal Kanti Mandal, Parijat Sinha, Rohit Dutta, Tara Chandra 
Sharma, Rajeev Sharma, Ms. Neelam Sharma, Rupesh Kumar, Advs. 
for the Respondent. 
The Judgment of the Court was deli"vered by 
·ASHOK BHUSHAN, J. I, This appeal has been filed against 
the judgment dated 16.02.2006 of Calcutta High Court, by which 
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judgment, the High Court reversed the order of acquittal granted by 
Additional Sessions Judge. The High Court convicted the appellants 
Anjan Dasgupta and one Biswanath Paul under Section 302/34 of IPC 
by awarding life sentence and a fine of Rs. 2000.00. 
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2. The prosecution case in brief is that, at 4.50 PM ofl 61h June, 
2000 Debo! Kumar Ghosh, the deceased was sitting inside the Party 
Office of 
CPl(M) at R.B.C. Road, Naihati, North 24-Paraganas at 
which time a maruti gypsy car stopped, from which the appellants got 
down. At the same time, four persons on two bicycles came from the 
direction of the Mitra Bagan Road and stopped right in front ofCPI(M) 
Party Office. The appellant by hand indicated Debo! Kumar Ghosh to 
four persons who had arrived there on two bicycles, and one of them 
fired from pipe gun on Debo! Kumar Ghosh. Leaving two cycles, all 
four persqns got in the Maruti Gypsi which speed up towards Gauripur. 
Sandip Ghosh, the son ofDebol Kumar Ghosh who was sitting inside his 
medicine shop, namely, "Ma Medical Stores" at R.B.C. Road, Naihati, 
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North 24-Parganas situated at 5 cubits from CPI(M) Office saw the 
above incident and rushed to CPI(M) Party Office and found his father 
Debo! Kumar Ghosh had sustained bullet injuries on his chest and was 
lying on the floor. The elder brother ofSandip Ghosh, upon hearing the 
sound, also came to the Party Office. The victim, Debo! Kumar Ghosh 
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was thereafter taken to Green View Nursing Hom~ where he was 
declared dead by the doctors at 5.00 PM. 
3. The information of murder of Debo! Kumar Ghosh was received 
by the Police Officials of the Naihati Police Station, who immediately 
rushed to the scene of occurrence. After receiving an R. T. message at 
17 .15 hours, the Sub Inspector Tapan Kumar also arrived at the scene 
at 17.40 hrs and remained at the scene till 21.05 hours. Sandip Ghosh 
went to the police station at about 7.30-8.00 PM alongwith one Arun 
Dey. Arun I)ey wrote the .complaint at dictation ofSandip Ghosh and a 
written complaint was submitted to the police station. The FIR No. 99 
of2000 was registered under Section 302/34 of the !PC and Section 25/ 
27 Arms Act, naming accused Anjan Dasgupta, Biswanath Paul, Sintu 
alias Saroj Roy and Bhola Kundu. 
4.Tapan Kumar, Sub Inspector received the FIR while he was 
still at the scene of occurrence. Sub Inspector Manick Chakraborty, on 
dictation ofTapan Kumar with a Constable prepared the inquest report 
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of the dead body at Green View Nursing Home at 22.35 hours. After
ANJAN DASGUPTA v. STATE OF WEST BENGAL 
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[ASHOK BHUSHAN, J.] 
the inquest report was prepared late in the evening, the dead body was 
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sent for postmortem. After completion of the investigation, accusedAnjan 
Dasgupta, Bhola Kundu, Sintu alias Saroj Roy and Biswanath Paul were 
charged for the commission of the offence under Section 302 read with 
Section 34 of the IPC and Basudev Paul was charged for offence under 
Section 212 of the IPC. 
5. Prosecutiony-l'amined thirty one witnesses in support of its 
case; prosecution also produced documentary evidences, namely, 
statements recorded under Section 164 Cr. P.C. and certain other 
documentary evidences. Accused persons adduced no oral evidences. 
Accused were examined under Section 313 Cr. P.C. 
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6. The learned Additional Sessions Judge acquitted accused 
Biswanath Paul for offence under Section 212 and all other accused 
from charge of Section 302/34. State filed an appeal against the acquittal 
order. The complainant also filed a Revisional Application CRR No. 
2263 of 2002, challenging the order of the acquittal. The High Court 
vide its judgment dated 16.02.2006 set aside the order of the acquittal as 
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regards toAnjan Dasgupta and Biswanath Paul. It, however, confirmed 
the acquittal with regard to the Sintu alias Saroj Roy and Bhola Kundu. 
Acquittal ofBasudev Paul was also affirmed. Appellant Anjan Dasgupta" 
was sentenced to undergo life impri~~l!?ent with a fine of Rs. 2000.00/-. 
Anjan Dasgupta has
filed this appeal challenging his conviction and 
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sentence. 
7. We have heard Shri Kapil Sibal learned senior counsel appearing 
for the appellant, Shri Rupesh Kumar learned senior counselii'ppearing 
for the Respondent No. 2 and Parijat Sinha learned counsel for the State 
of West Bengal. 
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8. Shri Kapil Sibal learned senior counsel for the appellant, in 
support of the appeal contends that learned Sessions Judge after 
considering entire evidence on record had rightly come to the conclusion 
that evidence led by prosecution contradicts the prosecution story, as to 
the genesis of occurrence, hence did not commit any error in acquitting 
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the appellant. It is contended that FIR was ante-dated and ante-timed as 
rightly held by the trial court. He S'ubmitted that from the evidence of 
PW 1 who gave the written complaint for lodging an FIR, it is clear that 
he went to the police station after 7.30 PM, hence the F.IR could not 
have been lodged before 7.30-8.00 PM and mention of time ofreceiving . 
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A. the information in the FIR as 17.35 hour clearly proves that it was ante-
timed. 
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9. Shri Kapil Sibal further submits that FIR, in fact was lodged 
after inquest report and inquest report according tu the evidence was 
prepared after the 22.35 hours. It is submitted that ante-timing and 
ante-dating of the FIR was with object to falsely implicate the accused 
since by that time prosecution story was still in vacuum. Shri Sibal referred 
to various contradictions in the statement of witnesses as noticed by trial 
court. He submits that High Court committed error in reversing the 
order of acquittal. It is well settled that if on an evidence two views are 
possible and the trial court exercises its discretion in having acquitted 
the accused, High Court ought not to interfere with the acquittal order. 
The FIR was dispafched from the police station with great delay, which 
could be placed before the Magistrate only on 22"d July, 2000, which 
also clearly proves that FIR was not registered at the time and the date 
when it is claimed. Mention ofU.D. Case No. 43/2000, in FIR causes 
suspicion and serious doubts with regard to the authenticity of the FIR 
and subsequent inquest report. Prosecution failed to prove any motive 
for the murder and in absence of any motive, .appellant could not have 
been convicted. 
I 0. Learned counsel appearing for the State as well as complainant 
have refuted submissions oflearned
counsel for the appellant. High Court, 
while reversing the acquittal order has properly reappraised the evidence 
and finding the guilt of the accused, convictionhas been recorded. There 
are more than one eyewitnesses who have proved by their evidence, 
place of occurrence, death by bullet injury, presence and participation of 
the appellant in the crime, which has been established beyond any 
reasonable doubt. There was no delay or discrepancy in the FIR. FIR, 
being a genuine document, trial court committed error in holding that 
FIR is ante- timed and anti-dated. The High Court after correctly · 
appreciating the entire evidence on record has rightly rever~ed the 
acquittal order. With regard to the delay in sending the copy of the FIR 
G to the Magistrate, nothing was asked in the cross-examination of the 
1.0. Further, although much argument was raised before the trial court 
regarding ante-timing and ante-.dating of FIR but no questions were put 
before the 1.0. and the sub inspector who recorded the FIR, when they 
appeared before the.~ourt. 
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11. First, we proceed to consider the submissions of the learned
ANJAN DASGUPTA v. STATE OF WEST BENGAL 
[ASHOK BHUSHAN, J.] 
counsel for the appellant regarding ante-timing and ante-dating of the 
FIR. The trial court had formulated point No. 3 as 'was the real FIR 
suppressed and the FIR proved as ante-dated'. Trial court had observed 
that PW 1 went to the police station at about 7.30/8.00 PM but in the 
formal FIR Exh. 9, it is recorded that information of the commission of 
offence was received at 17.35 hours on 16'h June, 2000. This entry in 
Exh. 9 contradicts the aforesaid evidence of the PW 1 as regard to the 
time oflodging of complaint to the police station. Argument was raised 
before the trial court that FIR was, not only ante-timed but also ante-
dated, as such no reliance should be placed on the Exh. 3. Magistrate 
had perused both the written complaint and the FIR, which bore the 
endorsement "seen" dated 22nd July 2000. Trial court held that FIR was 
dispatched from the police station on 22nd June, 2000 and was received 
at the Magistrate Court on 23'ct June, 2000. The trial court had recorded 
its conclusion in following words at Page No. 107: 
"'As the FIR was antetimed and there was abnormal 
unexplained delay in dispatching the FIR to the office 
of the learned Magistrate as well as putting up the same 
before the learned Magistrate, adverse inference should 
be drawn against the prosecution. The FIR cannot be 
attached with much value. " 
Following observations were made by trial court at Page No. l 06: 
"Even if the
FIR was lodged after 7-3018 p.111. as stated 
by the P. W.1 it would not lose it's value in it's entirety 
because it is not established that the FIR proved at the 
trial was a subsequent one or that it was written on any 
date after 16.6.2000" 
12. Now, coming to the evidence on record, there is evidence of 
PW I that he went to the police station between 7.30/8.00 PM and the 
First Information Report was written by Arnn Dey on his dictation. Both 
the above facts have been proved by statement of PW 1 Sandip Ghosh 
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and PW S Arun Dey; both have signed the written complaint. Shri Sun ii 
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Giri ASI PW 29 proved the recording of the FIR on the basis of written 
complaint given by Sandip Ghosh. No suggestion was put to PW 29 
regarding the date or time of recording of the FIR. 
13. Shri Su nil Giri has proved the FIR, he further proved that he 
received the FIR on 16'" June, 2000, he proved his signature on the FIR 
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also. He denied the suggestion that FIR was written on subsequent to 
J 61h June, 2000. Thus there is no case of ante-dating the FIR, even the 
trial court did not accept the submission that FIR was ante-dated. 
14. Now we come to the main submissions, that is, ante-timing of 
the FIR and delayed dispatch of the FIR to the court of the Magistrate. 
The sequence of the events, as it emerges from the evidence brought 
before the court, i.e. the evidence of PW I and PW 30, there is no 
doubt that PW I went to the police station at about 7.30 PM. The 
statement of PW 30, in this context, is very relevant. PW 30 in his 
statement has stated that on l 61h June, 2000, when he was posted at 
Police Station, Naihati, he was at village Shibdaspur, in connection with 
another case, when at 17 .15 hours he received an RT Message that at 
Mitra Bagan Crossing one Debo I Kumar Ghosh had been shot dead. He 
,arrived at the spot at about 17.40 hours and remained there till 21.05 
hours. He further stated that he prepared the sketch map on the spot 
and seized the certain articles including two bicycles from the entrance 
of the party office room. The statement in his examination-in-chief 
following was stated by I.O.: 
"While I was at village Shibdmpur under P S. Naihaati 
in connection with another case at 17. l 5hrs. 1 received 
an R. T. message that at Mitrabagan crossing one Debal 
Kr. Ghosh had been shot dead. 1 then
directly rushed to 
Mitrabagan More. I arrived there at 17-40 hrs. There 
was law and order problem over the murder. There was 
blockage of road. I received the FlR from the Police 
Station at the said Mitrabagan crossing. I had been 
engaged with law and order maintaing job upto 21.05 
hrs. I went to the C.PI.M party office at Mitrabagan 
crossing and prepared a sketch map thereof with index." 
15. In the cross-examination, he has stated thatASI Sun ii Giri had 
send him the R.T. message. Sunil Giri AS! thus had received the 
information of the murder of Debol Kumar Ghosh before 17 .15 hours, 
arrival of Sub Inspector Tapan Kumar Mishra I.O. on the scene at the 
time as claimed is proved; I.O. also went to the Green View Nursing 
Home, accompanied by S.I. Manick Chakraborty where dead body of 
the deceased, Debo! Kumar Ghosh was laid. Under the dictation of the 
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1.0., the inquest report was prepared by Manick Chakraborty Sub 
Inspector of Police, which has started on 22.35 hours. The inquest report
ANJAN DASGUPTA v. STATE OF WEST BENGAL 
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[ASHOK BHUSHAN, J.] 
which has been proved by witnesses and 1.0. clearly records the following: 
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'"Investigation report over the dead body of Deceased 
Debo! Kumar Ghosh (48) years son of late Kiran 
Chandra Ghosh of 21211 R.B.C. Road P.S. Naihati 
District North 24-Paraganas (Illegible)in CIW Naihati 
P.S. U.D. Case No. 43/2000 dt. 16.62000 and Naihati 
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P.S. Case No. 99 of 16.6.2000 under Section 302134 
I.P.C. & 25127 Arms Act." 
16. The inquest report thus mentioned both unnatural death case 
(U .D. No. 43/2000) dated l 6'h June, 2000 and P.S. Case No. 99 of l 6
1h 
June, 2000 under Section 302/34 oflPC and 25/27 Arms Act. From the 
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above, there can be no doubt that FIR was registered before the inquest 
report of dead body started. The evidence indicates that information of 
death was received by the police station before 17 .15 hours and police 
officials arrived at the spot immediately and the 1.0. arrived at the spot 
at 17.45 PM, by that time other police officials had already reached .. 
The receipt and the recording offirst Infonnation Repott is not a condition 
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precedent for setting in motion of a criminal investigation. When the 
information that Debo I Kumar Ghosh is shot dead, police was duty bound 
to start investigation. This Court in APREN JOSEPH ALIAS 
CURRENT KUNJUKUNJU AND OTHERS VERSUS THE STATE 
OF KERALA 1973 (3) SCC 114 stated following in paragraph 11: 
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"As observed by the Privy Council in K.
E. •: Khwaja, 
the receipt and recording of information report by the 
police is not a condition precedent to the setting in 
motion of a criminal investigation. " 
17. Much emphasis has been laid down by the learned counsel 
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for the appellant on the fact that, FIR notes in Column C, 'time 17.35'. 
The time 17.35 hours, we have already noted that Sunil Giri Sub Inspector 
of Police has recorded in the First Information Report. He had already 
received the information before 17. IS hours since he had sent the R. T. 
message to the 1.0. Information of cognizable offence having been 
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received by the ASI, with regard to the mention of time at 17 .35 in the 
FIR, which was recorded after 17.30 PM could have been explained if 
any questions were put to ASI Sunil Giri. From the cross-examination of 
ASI Sun ii Giri, it does not appear that any question was asked regarding 
the recording time 17.35 in the FIR. The possibility cannot be ruled out 
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that while registering the FIR on the basis of written complaint, theASI 
recorded the time when he received the information in the police station 
of the death of Debo I Kumar Ghosh. In any view of matter, the above in 
no manner diminishes the value or credibility of the FIR. 
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18. The information of murder was received before 17.35 hours 
atthe police station which is fully proved by arrival of the police officers 
much before -17.40 hours as proved by 1.0. Hence mention of the time 
at 17.35 can be treated as the time of receipt of the information of the 
offence in the police station and there is no such inconsistencies in the 
FIR so as to come to the conclusion that FIR was ante-timed. 
19. FIR as well as the inquest report both mentioned the accused 
Anjan Dasgupta. The inquest report has not been questioned on any 
account. The offence, having been committed at around 4-5 PM, 
registration of the FIR at the police station between 7.30 to 8.00 PM 
does not cause any reason to draw any adverse inference, more so, 
when after the occurrence, the deceased was taken to the nearby nursing 
home where .he was declared dead and body remained there till the 
inquest was over. The another circumstance, which have been heavily 
relied by trial court and reiterated before us by learned counsel for the 
appellant is dispatch of the FIR to the Magistrate with delay. This Court 
in Pal" Singh v. St"te of Punj"b
1972 (2) SCC 640 has held that delay 
in forwarding the FIR to court is not fatal in a case in which investigation 
has commenced promptly on its basis. 
20. The I.O. after receipt of the information of an offence by 
R.T. message had arrived at the scene on 17.40 hours, which clearly 
proves the prompt commencement of the investigation. FIR was 
dispatched on 22"d June, 2000 which has also been accepted by trial 
court. When no questions were put to 1.0. in his cross-examination 
regarding the delay in dispatch, at the time of hearing, the accused cannot 
make capital of the said delay in forwarding the FIR. This Court in 
R"bi11dr<1 M"llto "ml Another v. St"te of Jlwrklwml 2006 (10) SCC 
432 has held that in every case from the mere delay in sending the FIR 
to the Magistrate, the Court would not conclude that the FIR has been 
recorded much later in time than shown. It is only extraordinary and 
unexplained delay, which may raise doubis regarding the authenticity of 
th~ FIR. 
. 
21. The present is the case, where recording of the FIR on J 6•h
ANJAN DASGUPTA v. STATE OF WEST BENGAL 
[ASHOK BHUSHAN, J.] 
June, 2000 itself has been proved, accepted by the trial court also, thus 
mere dispatch of the FIR on 22"d June, 2000 from the police station to 
the Magistrates' Court has no bearing on the basis of which any adverse 
presumption can be drawn. From the above discussion, we are of the 
clear view that the FIR was genuine FIR and trial court committed an 
error in drawing adverse inference against the prosecution and refusing 
to attach value to the FIR. 
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22. The con'clusion of the learned Sessions Judge that the FIR 
was manipulated is thus found to be erroneous. FIR has been proved by 
the evidence as noted above. Thus, one of the basis of the decision of 
the Sessions Judge for discarding the prosecution case is knocked out. 
23. Now, we came to the consideration of oral evidence by Sessions 
Judge. Both the deceased and accused belong to the same locality. The 
occurrence was witnessed by several persons, including the eye-
witnesses who appear<:d before the court and proved the prosecution 
case, PW. I Sandip Ghosh, PW.2 Yijay Das, PW.3 Kamal Nath, PW.4 
Manabendra Nag, PW.6 Prasanta Ghosh, PW. I 0 Shashanka Nath and 
PW I Shankar Ghosh. 
24. PW. I Sandip Ghosh, the son of the deceased was in his medical 
shop "Maa Medical Stores" which is at the distance of about 5 cubits 
from CPl(M) office. In his eye-witness account, he stated that at 04:50 
PM when he was at his shop, he found a motor vehicle, a Maruti
Gypsy 
to come from side ofNaihati Station and got itself parked on R.B.C. 
Road after crossing Mitrapara and R.B.C. Road Crossing. He saw 
Biswanath Paul and Anjan Dasgupta got down from the said motor 
vehicle and at that very moment, four boys about age 22/23 years came 
in front of aforesaid party.office from side of Mitra Bagan by two Bicycle. 
He further saw Anjan Dasgupta and Biswanath Paul to point out his 
father sitting inside the party office. One of the said boys took out a pipe 
gun and shoot Debo! Ghosh. Anjan Dasgupta further observed that "Hay 
Gechi Tara Tari Chale Aiy". Thereafter, the said vehicle left. In the 
cross-examination, the witness stood firm with his eye- witness accound 
and could not be shaken. 
25. PW 2 Vijay Das on the fateful day was standing at the gate of 
the party office inside of which Debol Ghosh was sitting. Debo! Ghosh 
after taking the tea asked him to bring the beetle leave. He went to the 
beetle shop fo front of the party's office on the other side ofroad, where 
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B 
c 
D 
E 
F 
G 
H
102 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
r20l6l 12 S.C.R. 
he saw Anjan Dasgupta and Biswanath Paul to get down from Maruti 
Gypsy at the crossing ofR.B.C. Road. At that time four persons by two 
bicycles came from the Mitrapara side. One of the said four boys brought 
a shooter machine and fired Debal Ghosh. Thereafter, all left towards 
Gouripur. 
26. PW 3 Kamal Nath, who has a shop on the footpath in front of 
the CPI(M) party office, stated in his evidence that in the afternoon of 
l 61h June at 03:00 PM to 04:00 PM, he was sitting inside the party office 
and he went out of the office room and was standing outside smoking a 
'cigarette'. At that time, a red Gypsy came and stationed at the distance 
of3 cubits from him, from which Anjan Dasgupta and Biswanath Paul 
got down. At that very time, 4 persons came by 2 Bicycles from the side 
of Mitra Bagan. Two of the said persons fired from outside the party 
office and shot Debo I Ghosh. They left the bicycles and left the place by 
Gypsy towards Gouripur. 
27. The almost similar eye-witness account has been narrated by 
other eye-witness who were examined by Prosecution. 
28. Learned Sessions Judge pointing out certain discrepancy/ 
contradiction in the statement held that the evidence by eye-witnesses 
does not inspire confidence. Learned Sessions Judge had also made 
observation that no explanation had been offered by the prosecution as 
to why statement of witnesses under Section 164 Cr. P.C. was recorded 
with
delay. The statement given by the eye-witness in the court cannot 
be discarded merely on the grounds that statement which got recorded 
under Section 164 Cr.P.C. by the prosecution was not immediately 
recorded. 
29. The cross-examination of 1.0. PW.31 does not indicates that 
the any explanation was asked from him regarding delayed recording of 
the statement under Section 164 Cr.P.C. 
30. The High Court has also re-appraised the entire oral evidence 
and had observed that eye-witnesses stick to their earlier statements 
G 
except one or two witnesses who attempted to add something during the 
statements. Following had been recorded by the High Court at Page 22: 
H 
" ... We have carefully examined the statement of the 
witnesses and also their statement recorded under 
Section 164 C1:P. C. and we find that there was attempt
ANJAN DASGUPTA v. STATE OF WEST BENGAL 
[ASHOK BHUSHAN, J.] 
on the part of one or two witnesses to add something 
more during their statement recorded before the learned 
Magistrate, but, as a whole all the eye-witnesses sticked 
to their earlier statements given before the l 0. and they 
made the same statement before the trial Court during 
their examination ... ·· 
31. After looking to the evidence of eye-witnesses, High Court 
has observed that all of them had deposed of arrival of Maruti Gypsy 
Vehicle, Presence of Anjan Dasgupta and Biswanath Paul on the place 
of occurrence and about giving instructions to shoot Debo! Ghosh and 
subsequently helping the persons to flee from the place of occurrence 
by getting inside the Maruti Gypsy Vehicle. Following are the findings 
recorded by the High Court: 
" ... From the statements of PWl, PW2, PW3, PW4, 
PW.6, PWlO and also from PW.21 we find that all of 
them deposed about arrival of a maruti gypsy vehicle, 
presence of Anjan Dasgupta and Biswanath Paul on 
the place of occurrence and also about giving of 
instruction to shot at Debal Ghosh and subsequently 
for helping the persons to flee from the place of 
occurrence by getting inside the maruti gypsy vehicle ... " 
32. The appreciation of evidence of eye-witnesses and discarding 
the aforesaid evidences by the learned Sessions Judge was on flimsy 
ground and based on surmises and conjectures which has been correctly 
re-appreciated by the High Court. For instance, with
regard to eye-
witness PW 2 Vijay Das, learned Sessions Judge discard the evidence 
of PW 2 by giving fol lowing reasons: 
" .. .In the statement recorded under Section 164 Cr.P. C. 
marked Exhibit 1 this gentleman told that on hearing 
sound of firing he rushed and found that Debal Ghosh 
was shot and one was going to pick up the bicycle. At 
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E 
F 
that time he tried to catch the said man and Anjan said 
G 
"be quickly the pigs". In the statement recorded under 
Section 164 Cr.P. C. which was made more than two 
months after the alleged date of occurrence did not 
name the person whom he tried to catch. So this omission 
contradicts the aforesaid evidence of the PW.2. The 
H
104 
SUPREME COURT REPORTS 
[2016112 S.C.R. 
A 
PW2 s evidence being contradicted by his earlier belated 
statement under Section 164 Cr.P.C as well as suffers 
from improbability cannot be relied on ... " 
33. The mere fact that the witness did not name the person whom 
he tried to catch does not lead to any contradiction since all eye-witness 
B 
have stated that four persons came by 2 bicycles one of whom shoot 
Debo! Ghosh. 
34. PW 2 stated that he tried to catch one person of the aforesaid 
and omission not to name the person does not lead to any contradiction 
nor can result in discarding the evidence. The observation of learned 
c 
Sessions Judge thatthe evidence suffers from the improbability and cannot 
be relied is also not based on any valid reason. 
35. Some minor contradiction has been pointed out by learned 
Session Judge in the evidence of other eye-witnesses which have rightly 
been discarded by the High Court and the High Court after re-
D 
appreciating the evidence has rightly come to the conclusion that the 
occurrence as well as participation of Anjan Dasgupta, the appellant 
was proved. Following conclusion has been recorded by the High Court: 
" ... Thus from the evidence on record we get that several 
witnesses of the locality who were present on the place 
E 
of occurrence had noticed Anjml' Dasgupta and 
Biswanath Paul on the place of occurrence and also 
noticed their active participation in the 111atter of murder 
of Debal Ghosh and in this context
we want to record 
that the learned trial Court totally misdirected itself in 
the 111atler of appreciation of the evidence of the eye-
F 
witness. " 
36. High Court was conscious that the case where acquittal has 
been made, while entertaining an appeal over an order of acquittal if two 
. views are possible on making proper appreciation of available evidence 
the view going in favour of accused have to given importance. It is well 
G 
settled that in case where an order of acquittal has been made on 
improper and erroneous appreciation of evidence, it is always open to 
the court of appeal to make proper and reasonable appreciation evidence 
and differ from the order of acquittal and in such event, it shall never 
hesitate in reversing the same. Ultimately, the High Court concluded: 
H 
" ... Fro111 scanning of the entire prosecution evidence and
ANJAN DASGUPTA v. STATE OF WEST BENGAL 
105 
[ASHOK BHUSHAN, J.] 
having regard to submission of the respectivi parties, 
A 
we are constrained to hold that the learned trial Court 
was totally wrong both in law and, in fact, in making its 
observation that the FIR was antedated and anti timed 
and a manipulated one. The trial Court also erred in 
law by discarding the FIR for delay in dispatching the 
same in the Court of the Magistrate." 
37. We are of the opinion that the findings and conclusion recorded 
by the High Court are based on the correct appreciation of evidence and 
do not suffer from any error. The judgment of the High Court reversing 
B 
the acquittal recorded by learned Sessions Judge needs no interference. 
There are no merits in this appeal. The appeal is dismissed. The appellant 
C 
is on bail his bail bonds are cancelled and the appellant is directed to be 
taken into custody forthwith. 
Ankit Gyan 
Appeal dismissed.