19. 14.08.2026 Court No.11 (Tanmoy) CALCUTTA HIGH COURT IN THE CIRCUIT BENCH AT JALPAIGURI APPELLATE SIDE CRA(DB)/56/2025 (Old No: CRA/183/2019) In Re: - An appeal against the judgment and order dated 07/11.12.2018, passed by the learned Additional Sessions Judge, 1st Court, Jalpaiguri, in SC No. 43/2017(26/17) arising out of Kotwali PS Case No.558/2016 dated 30.09.2016, convicting the appellant under Section 302 of the Indian Penal Code, 1860. AND In the matter of: - MD. ALIB @ ALIB MOHAMMAD … appellant. Mr. Subham Gupta …for the appellant. Mr. Jagriti Mishra, Ld. AAAG Mr. Bijay Bikramn Das Mr. Partha Pratim Sarkar …for the State. Dictated by Arijit Banerjee, J. 1. This appeal is directed against a judgment of conviction dated December 7, 2018 and order of sentence dated December 11, 2018, passed by the learned Additional Sessions Judge, 1st Court Jalpaiguri, in Sessions Case No. 43/2017(26/17), whereby the learned Trial Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 and sentenced the appellant to suffer life imprisonment. 2. The prosecution case, briefly stated, is that one Bijoy Roy and the victim, whose name was Jahamatulla @ Chattu, went to a market place. There, the appellant called the victim aside saying that he had some discussion with the 2 victim. Then the appellant stabbed the victim several times and the victim succumbed to the injury. When he was taken to the hospital he was declared ‘brought dead’. 3. Upon investigation, the Police filed charge-sheet against the appellant. Charge was framed under Section 302 of the Indian Penal Code, 1860. Upon being asked, the appellant pleaded not guilty and claimed to be tried. Hence the trial. 4. The prosecution examined 11 witnesses. The defence examined none. 5. The Learned Judge analyzed the evidence on record. He noted that PW3 being Bijoy Roy with whom the victim had gone to the market place, was an eyewitness to the incident of murder. The evidence of PW3 is corroborated by the evidence of PW1 (brother of the victim) and PW 2 (mother of the victim). The post mortem report exhibited at the instance of the post mortem Doctor being PW8, reveals injuries which are quite compatible with stabbing by knife. The report indicates that each injury could be fatal by itself. 6. The learned Judge noted the argument of the defence Counsel who tried to establish various inconsistencies and shortcomings in the prosecution case. The learned Judge came to the conclusion that such alleged inconsistencies or shortcomings or fault in the process of investigation do not fundamentally affect the prosecution case. Hence the learned Judge convicted the appellant under Section 302 of 3 the Indian Penal Code, 1860 and sentenced him to suffer life imprisonment. 7. We have heard learned Counsel for the parties at length. 8. Learned Counsel for the appellant argued that there was a delay in lodging the F.I.R. The F.I.R. was lodged five hours after the alleged incident. 9. We do not find any merit in this contention. An F.I.R. lodged five hours after the alleged incident cannot be said to be a belated F.I.R. 10. Learned Counsel argued that the offending weapon that was seized by the Police was not sent to the Forensic Science Laboratory (F.S.L.) for ascertaining whether or not there was fingerprint on it. In any event, no F.S.L. report was brought on record. 11. This contention is factually incorrect. F.S.L. report is on record being Exhibit-8. Human blood was detected on the ‘Full sleeved vest cuttings’ and on the knife the blood stain was disintegrated and origin was not determined. However, no fingerprint was found. 12. Learned Counsel then argued that the wearing apparels of PW3 (Bijoy Roy) were not seized by the Police although, admittedly, the clothes of PW3 were soaked in blood. 13. Factually, this is correct. However, we do not see how such omission on the part of the Investigating Officer affects the legality of the judgment and order under appeal. It is nobody’s guess and it was not even hinted before the learned Trial Judge that PW3 actually committed the 4 crime. In our view, the failure on the part of the Police to seize the wearing apparels of PW3 does not per se affect the legality or correctness of the impugned judgment. 14. Learned Counsel then argued that the statement of Bijoy Roy was not recorded by the Magistrate under Section 164 of the Criminal Procedure Code, 1973 (corresponding to Section 183 of Bharatiya Nagarik Suraksha Sanhita, 2023). He is said to be the only eyewitness to the incident. It was imperative on the part of the Police to have his statement recorded before the Magistrate under Section 164 of the Criminal Procedure Code, 1973. 15. Again, in our opinion, the failure of the Police to have the statement of PW3 recorded under Section 164 of the Criminal Procedure Code, 1973, does not materially affect the impugned judgment. If the judgment can be supported by other evidence on record, omission as above, would be of little significance. 16. We have ourselves, gone through the evidence on record and in particular, the depositions of PW1 (victim’s brother), PW2 (victim’s mother), PW3 (Bijoy Roy), PW8 (post mortem Doctor). On an assimilation of the evidence of the aforesaid prosecution witnesses, we do not have doubt in our mind that the learned Trial Judge has rightly convicted the appellant. 17. PW3 is an eyewitness. PW1 and PW2’s evidence corroborate the evidence of PW3. The post mortem report supports the prosecution case wholly. Another important 5 fact is that PW2, the mother of the victim, has deposed that when she rushed to the place of occurrence having heard hue and cry, she was told by the victim that it was this appellant who inflicted stab injury on him. 18. Although PW5 and PW6 who were shopkeepers at or around the place of occurrence, turned hostile, having considered their evidence, we are of the opinion that their evidence does not make any dent in the prosecution case. 19. We further see that the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973, stated as follows:- “ …Q.30. Do you want to say anything about this case? Ans. I was at my home on the day of „Mahalaya‟. In the evening Rahamatulla and Bijoy came to my house in drunken condition to call me for enjoying picnic. Then my mother was at home. Mother did not allow me to go with them. I did not go with them. While returning, they were quarrelling and scuffling with each other on the issue of who would pay the price of alcohol. Both of them went away from my house quarreling. On the next day I heard that Rahamatulla had been murdered.” 20. If such was the case, we would have expected the appellant to examine his mother as a defence witness to establish his alibi. He did not do so. In fact, he said that he did not wish to adduce any evidence in the case. 21. We, therefore, see that there is adequate evidence on record to support the conviction of the appellant. In this connection, we may note the operative portion of the judgment of the learned Trial Judge “…According to the Ld. Counsel of Defence, police did not find any opportunity to interrogate the eye-witness of this 6 case but the witness himself namely P.W.3 and the Investigating Officer himself stated in no certain terms that PW.3 was interrogated by police, which is also admitted by the Defence during the cross-examination of P.W.11 (I.0). The statement of P.W.3 before the police, u/s.161 Cr.PC is compatible with his statement before the court on oath in regard to the substance of incident, since no disparity in between the statements of P.W.3 is raised by the Ld. Defence Counsel during examination of the I.O. According to P.W.3 as deposed by the I.0 that on hearing a sound, 'Ma', he was attracted and had been to the P.O. If we look into the evidence, then it is clear that the incident of stabbing took place at a little distance from the place where P.W.3 was waiting. The said statement in reply to cross-examination of P.W.3 make the case of the prosecution stronger. Said statement dispel any uncertainty as to the presence of PW3 at the PO. Therefore, the court can safely rely upon the evidence of P.W.3 and also the evidence of P.W.s.1 & 2, since said evidence are not impeached of its veracity. The ancillary submissions made by the Ld. Counsel of the Defence that the finger print of the assailant was not recovered from the offending weapon and that the blood- soaked wearing apparels of the ocular witness namely, P.W3 were not seized. Had the finger print been collected and the apparels would have been seized by I.0, then the same could have assisted the case of the prosecution, or else would have brought the truth to light. This court is of the opinion that the submissions of the Ld. Defence Counsel does not have any adverse effect on prosecution case because the remissness on the part of the investigating agency, if any could not make the case of the prosecution unworthy of credit, if the same is otherwise proved by whole some evidence. The decision being banked upon by the learned defence counsel are distinguishable on fact and in law from the case in hand. The legal principle set out in the said decision is not applicable in the case in hand as I honestly understand from the careful reading of the same. Even if, it is believed for the sake of argument without accepting that there is exaggeration in regard to the fact that the decease was not taken to hospital after being stabbed as demanded by the witnesses, then also the 7 prosecution case remains unaffected, since the principle 'falsus in uno falsus in omnibus' is not applicable in Criminal Jurisprudence of India and the same is not on material point. The hub of the case remains proved by unimpeachable evidence. The defence as I understand from the scrutiny of record, rather lend assistance to the case of the prosecution in its proof. I would repeat to say that the motive behind the crime was not whispered by the prosecution witnesses but in reply to the cross-examination, the witnesses particularly P.W.1 unveiled that there was a family feud between the family of the accd, and the deceased owing to the reason that the accd. eloped with one of paternal aunt of the complainant about 5 years ago from the date of incident but did not marry her thereafter. It is true in one hand that in view of such enmity, there is chance of the accd. being entangled with the allegation of murder. It is equally true on the other had that it is due to said long- standing enmity, the accd. committed murder of the deceased. The common presumption is that any person would not entangle any person other than the person actually responsible for commission of offence because the strong desire for retaliation burns the heart of human being particularly when the death occurs to a near and dear one. In the present case, there is no room for implication of the accd. by way of fabrication, since there is no lapse of time in between the commission of the offence and the lodging of the complaint. Therefore, it is overwhelmingly proved beyond all sorts of doubt that it is none but the accd. Md. Alib committed murder as alleged by the prosecution and accordingly, he is liable to be held guilty, u/s.302 of I.PC...” 22. The learned Judge has rightly held that minor lapses in the process of investigation are not fatal to the prosecution case so long as the evidence on record is sufficient to implicate the accused person. In our opinion, the learned Judge has correctly assimilated the evidence on record and has applied the correct principles of law in coming to the 8 conclusion that the prosecution has been able to prove its case beyond reasonable doubt. 23. In the result, we see no reason to interfere with the judgment and order assailed before us. 24. The appeal being CRA(DB)/56/2025 (Old No: CRA/183/2019) stands dismissed. 25. The Trial Court Records (TCRs) be transmitted to the learned Trial Court forthwith. 26. Criminal Section is directed to make available certified copies of this judgment to the parties, if applied for, upon compliance with all requisite formalities. [Chaitali Chatterjee (Das), J.] (Arijit Banerjee, J.)