Failure to recover crime weapon can’t trump credible evidence: HC

Kolkata: In a 2009 murder case where a man was gunned down by masked assailants, the Calcutta High Court, while upholding the trial court’s life sentence order for one of the accused, observed that investigational failure in recovering weapon of offence can’t be a ground to disbelieve the prosecution case when there is credible evidence of witnesses.

The Bench of Justice Joymalya Bagchi and Justice Gaurang Kanth was moved by one of the accused persons, Nefazuddin Sheikh, challenging the 2018 order of life sentence by the trial court.

Jasimuddin Seikh was gunned down on May 20, 2009 when he was chatting with four persons in the club meeting room of Nefazuddin. According to the victim’s father and brother, when the assailants were fleeing, two of them, Nefazuddin and Samed Sheikh, allegedly unmasked to reveal their faces and told the father they murdered his son.

During the probe, empty cartridges and blood-stained earth were collected from the incident spot. Names of three other accused transpired. Samed Seikh in the meantime got murdered and could not be tried. Hence, Nefazuddin alone was convicted as rest were acquitted. The counsel representing him said his conviction under Section 302/34 of IPC is illegal and evidence of the father and another witness is unreliable.

The court observed the kin of the deceased had an enmity with Nefazuddin which is a strong motive. Autopsy report revealed death was due to gun-shot injury. Further, recovery of several fired cartridges from the incident spot proved indiscriminate firing by more than one person. Defence submitted no firearm was recovered. The court observed that failure to recover the gun cannot be a ground to disbelieve

prosecution case. Upholding the life sentence, the court said that if the appellant makes a prayer for remission of his sentence upon completion of 14 years of actual imprisonment, his prayer be considered by the appropriate authority bearing in mind his age, criminal antecedent and his conduct in the

correctional home.