DILWAR HOSSAIN AND ANR vs STATE OF WEST BENGAL AND ANR

IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE

PRESENT:
THE HON’BLE JUSTICE UDAY KUMAR

CRR 1781 OF 2022

DILWAR HOSSAIN & ANR.
-VS-
STATE OF WEST BENGAL & ANR.

For the Petitioners : Mr. Satadru Lahiri,
Mr. Malay Bhattacharyy

For the State : Mr. Subir Ganguly
Mr. Sayan Mukherjee

Reserved on : 13.10.2026
Pronounced on : 12.11.2026

UDAY KUMAR, J.: –
1. This criminal revisional application under Section 397 read with
Section 401 of the Code of Criminal Procedure, 1973, is directed against
the legality, propriety, and correctness of the judgment and order dated
March 15, 2022, passed by the 5th Court of the learned Additional
Sessions Judge, Malda, in Criminal Appeal No. 04 of 2021, thereby
affirming the judgment of conviction and sentence passed by the
learned Chief Judicial Magistrate, Malda, convicting the petitioners
under Sections 419/120B and 420/120B of the Indian Penal Code.
2. The prosecution’s case briefly stated that, on October 01, 2019, Karuna
Bala Adhikary (PW-1), visited the Axis ATM counter at Bulbulchandi to

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withdraw cash but due to technical glitches she failed to withdraw the
same. The unknown persons who were present inside the booth at that
time suggested her to try a nearby SBI ATM. When she inserted her
card into the second SBI ATM, one person intercepted her under the
pretext of urgent necessity, requesting permission to execute a
transaction first. It is the case of the prosecution that during this brief
interval, the petitioners-accused surreptitiously swapped her original
SBI debit card (ending in 1042) with a card bearing the name of one
Raju Sarkar. This deception came to the knowledge of the complainant
on the following day (October 02, 2019), when she received mobile
alerts indicating unauthorized cash withdrawals and a gold purchase
using her SBI debit Card amounting to a total of ₹ 65,300/-. Thereafter
she searched for her card but failed to find it, subsequently blocked the
said debit card. Despite that she lodged the formal written complaint
(Ext. 1) only on October 16, 2019, i.e., after sixteen days of
denture/incident, upon which Cyber Crime P.S. Case No. 05 of 2019
has been registered under Sections 419/420/120B of the Indian Penal
Code, 1860, against the present petitioners, Dilwar Hossain and
Mehebub Alam, alongside one Nabi Sk.
3. During investigation, the Investigating Officer, ASI Jhumpa Mandal
(PW-12), apprehended Petitioner No. 1 on October 16, 2019, from a
jewellery shop (Goswami Guinea House) owned by PW-4 , where the
complainant's original ATM card was purportedly recovered from his
physical person, and seized tax invoices (Ext. 4 and 4/1) and jewellery
boxes from G.D. Guinea House on October 19, 2019, under a proper

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seizure list but without seals and gala impressions, and without
entering these articles in the Malkhana Register. The I.O. also failed to
produce all the 26 ATM cards recovered from the petitioners. The
prosecution could only produce 9 cards in court during the trial.
4. To prove its case, the prosecution adduced ocular testimony of seizure
witnesses (PW-3, PW-7), trade witnesses (PW-2, PW-4), and other
documents, including complainant’s bank passbook (Ext. 2), unverified
photocopies of tax invoices and merchant slips (Ext. 4 and 4/1), digital
debits and bank ledgers, and T.I.P. records (CW-2) claiming a witness
identified the suspects. In their examination under Section 313 of the
Code of Criminal Procedure, the accused failed to bring any adverse
inferences to prove innocence, while the trial court heavily leaned on
unverified past criminal histories of the petitioners and pending cases
against them as substantive proof of criminal propensity.
5. The petitioners focused strongly on a complete collapse of the chain of
custody, total inadmissibility of secondary and electronic documents, a
vitiated Test Identification Parade wherein the contemporaneous parade
document proved a complete failure of identification, where PW-1
herself admitted that the accused were shown to her at the police
station prior to the parade, and Magistrate CW-2's oral testimony
contradicted official T.I.P. records (Ext. 14), and a flagrant violation of
the principle of parity.
6. Concluding the trial, the learned Chief Judicial Magistrate, Malda, vide
judgment dated November 16, 2021, convicted the petitioners under

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Sections 419/120B and 420/120B IPC, sentencing them to
imprisonment extending up to four years with a fine of ₹ 20,000/- each.
7. Being aggrieved by the said judgment of conviction, the petitioners
preferred Criminal Appeal No. 04 of 2021 before the Sessions Court,
challenging the trial court's findings on the grounds that the conviction
rested on a broken chain of custody, unsealed and fabricated seizures,
dead secondary and electronic documents lacking statutory certification
under Section 65B of the Indian Evidence Act, 1872 or under Section
2A of the Bankers' Books Evidence Act, 2026, pre-trial police station
exposure destroying the T.I.P., and a direct violation of the doctrine of
parity. The petitioners took the stand that in doing so, the trial court
manifested a glaring judicial double standard—i.e., while evaluating
identical house-search recovery evidence of third-party ATM cards, the
Magistrate chose to discard the recoveries and honourably acquit co-
accused Nabi Sk., while turning around to weaponize the exact same
quality of flawed recovery evidence to convict the present petitioners,
violating the foundational parity principle.
th
8. However, the 5 Court of the learned Additional Sessions Judge, Malda,
vide judgment dated March 15, 2022, mechanically affirmed the
conviction and sentence passed by the learned Trial Court. The first
appellate court dismissed the monumental foundational illegalities,
sealing defects, missing Malkhana entries, and electronic admissibility
bars as mere "defective investigation," endorsing the trial court's
reliance on direct recovery and ocular testimony without independently

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addressing the mandatory statutory prerequisites governing secondary
and electronic records.
9. Left with no other efficacious remedy against concurrent findings
perceived as a classic instance of perversity, the petitioners invoked the
revisional jurisdiction of this Court under Section 397 read with Section
401 of the Code of Criminal Procedure, 1973, through the instant
revisional application i.e., C.R.R. No. 1781 of 2022. The revisional
challenge is firmly grounded on the premise that the concurrent
judgments of conviction and sentence are founded on suspicion,
inadmissible secondary and electronic materials, unsealed and
fabricated recoveries with broken chains of custody, pre-trial police
station exposure vitiating the T.I.P., a blatant violation of the doctrine of
parity vis-à-vis the acquitted co-accused, and the unlawful use of
unverified past criminal histories to shift the burden of proof to the
defence. The petitioners contend that these cumulative foundational
gaps meet the highest judicial threshold of a perverse judgment,
wherein total non-appreciation of evidence and gross manifest errors of
law warrant immediate revisional interposition to prevent a gross
miscarriage of justice.
10. Mr. Satadru Lahiri, the learned counsel appearing on behalf of the
petitioners, Dilwar Hossain and Mehebub Alam, emphasized that the
concurrent findings of conviction and sentence rendered by the trial
court and the first appellate court are vitiated by fundamental illegality,
misreading of evidence, and complete perversity, as the prosecution
case from its inception in Cyber Crime P.S. Case No. 05 of 2019 up to

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the first appellate court’s affirmation dated March 15, 2022 rested on a
fragile and broken foundation of unproved circumstances.
11. Mr. Lahiri further submitted that the prosecution case suffers from a
fatal and unexplained delay right at the threshold. Although the alleged
card swap and discovery occurred on October 01 & 02, 2019, the formal
written complaint (Ext. 1) was belatedly lodged only on October 16,
2019, after a hiatus of nearly fourteen days coinciding precisely with
the date of arrest of the petitioner no. 1-accused and initial police raids,
without any Station Diary entry or justification offered to account for
the interregnum.
12. Mr. Lahiri strongly contended that the core circumstance of alleged
recovery of ATM cards and gold items was completely non est in the eye
of law for want of identity, safe custody, and mandatory statutory
safeguards. He pointed out that the I.O. (PW-12) admitted on oath that
no Malkhana register was maintained or produced, all seized articles
remained in her personal and unsupervised custody and the
independent seizure witnesses (PW-3 and PW-7) deposed that items
lacked proper seals or gala impressions. Furthermore, the total absence
of a Malkhana register and an unexplained quantity mismatch, where
an initial recovery of 26 ATM cards dwindled down to 9 produced in
court, completely shatters the chain of custody. To substantiate this
limb, the defence relied upon authoritative pronouncements including
Mohd. Aman & Anr. v. State of Rajasthan , [(1997) 10 SCC 44]; State of
Rajasthan v. Daulat Ram , [(1980) 3 SCC 303]; State of Rajasthan v.
Gurmail Singh , [(2005) 3 SCC 59]; Sk. Bhalu & Anr. v. State of West

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Bengal , (2019 SCC OnLine Cal 8007); Mool Chandra v. State of
Uttarakhand , (2026 SCC OnLine Utt 726); and Ramkrushna Prahllad
Dongardive v. State of Maharashtra , (2026 SCC OnLine SC 2091),
submitting that unsealed seizures and compromised tamper-proofing
render recoveries legally dead.
13. The learned counsel for the petitioners further contended that the
prosecution's attempt to prove financial siphoning relied on unverified
photocopies of tax invoices (Ext. 4 and 4/1) and uncertified computer-
generated bank passbooks (Ext. 2), which are legally dead documents
violating the provisions of the Indian Evidence Act and the Bankers'
Books Evidence Act. Relying on the decisions of the Hon’ble Supreme
Court in Tharammel Peethambaran & Anr. v. T. Ushakrishnan & Anr. ,
(2026 SCC OnLine SC 169); Pooranmal v. State of Rajasthan & Anr. ,
(2026 SCC OnLine SC 344); Anvar P.V. v. P.K. Basheer & Ors. , [(2014)
10 SCC 473]; and LIC of India & Anr. v. Ram Pal Singh Bisen , [(2010) 4
SCC 491], the defence argued that secondary evidence is strictly
inadmissible unless the pre-conditions under Section 65 of the Indian
Evidence Act are fulfilled, computer outputs require mandatory Section
65B (of the Indian Evidence Act) certification, and the mere marking of
a document as an exhibit does not dispense with the requirement of
proving its contents.
14. It was also urged that identification evidence was fatally flawed due to
pre-trial police station exposure and judicial contradictions, citing
Shaikh Umar Ahmed Shaikh & Anr. v. State of Maharashtra , [(1998) 5
SCC 103]; Habal Shaikh & Anr. v. State of West Bengal , (1990 SCC

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OnLine Cal 98); and Sujit Biswas v. State of Assam , [(2013) 12 SCC
406]. Furthermore, a formidable argument was advanced on the
principle of parity, highlighting that the trial court disbelieved identical
house-search recoveries to acquit co-accused Nabi Sk., yet adopted a
diametrically opposite standard to convict the petitioners on identical
recovery materials, violating the ratio laid down in Javed Shaukat Ali
Qureshi v. State of Gujarat , [(2023) 9 SCC 164], and Manjur Sk. @
Manjur Shaikh v. State of West Bengal & Anr. , (2026 SCC OnLine Cal
4500). Finally, invoking the ratio laid down in Sanjaysinh Ramrao
Chavan v. Dattatray Gulabrao Phalke & Ors. , [(2015) 3 SCC 123] and in,
Manjir Chatterjee v. Sushanta Dutta , (2022 SCC OnLine Cal 3352), the
petitioners submitted that concurrent findings suffering from total non-
appreciation of evidence and reliance on inadmissible documents
warrant revisional intervention of this Court under Sections 397 read
with 401 Cr.P.C.
15. Finally, Mr. Lahiri submitted that the first appellate court mechanically
dismissed these monumental foundational illegalities, sealing defects,
and electronic admissibility bars as mere "defective investigation,"
failing to apply an independent judicial mind to the total lack of
statutory certification and the blatant violation of the principle of parity
by the learned Trial Court.
16. Conversely, Mr. Subir Ganguly, the learned counsel appearing on behalf
of the State of West Bengal stoutly defended the concurrent findings of
conviction and sentence rendered by the learned trial Court and first
appellate Court, contending that the impugned judgments suffered from

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no perversity, illegality, or miscarriage of justice. He argued that the
primary circumstance of recovery, specifically the seizure of the victim's
exact, personalized SBI ATM card (ending in 1042) was effected directly
and exclusively from the physical person of Petitioner No. 1, Dilwar
Hossain, upon his red-handed apprehension at Goswami Guinea House
on October 16, 2019, as proved by independent witnesses PW-4, PW-7,
and the Investigating Officer (PW-12).

17. Mr. Ganguly further submitted that the acquittal of co-accused Nabi
Sk. by the trial court was entirely justified because no direct or
circumstantial material connected Nabi Sk. to this specific victim's
card, whereas the present petitioners were caught red-handed with the
stolen property. To substantiate this position, the State relied upon the
decisions of the Hon’ble Supreme Court in State of Uttar Pradesh v.
Naresh & Ors. , [(2011) 4 SCC 324], and Bhagwan Jagannath Markad v.
State of Maharashtra , [(2016) 10 SCC 537], submitting that minor
discrepancies, procedural oversights, or ordinary remissness by an
investigating officer do not erode the core credibility of truthful ocular
testimony and direct recovery evidence.

18. The learned counsel for the State further contended that the evidentiary
chain was fully fortified by contemporaneous commercial records,
including original Tax invoice marked as Exhibit 5, merchant slips
marked as Exhibit 4/1 from G.D. Guinea House, and branded
packaging recovered from the residences of the petitioners-accused,
which tied the siphoned funds directly to gold purchases made by them
under aliases. Addressing criticisms regarding minor investigative

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lapses, such as the lack of formal Malkhana entries or sealing defects,
the State placed heavy reliance upon the decisions of the Hon’ble
Supreme Court in State of Maharashtra v. Jagmohan Singh Kuldip Singh
Anand , [(2004) 7 SCC 659], and Narayan Chetanram Chaudhary & Anr.
v. State of Maharashtra , [(2000) 8 SCC 457], arguing that courts must
distinguish between vital defects that strike at the root of the
prosecution case and minor ministerial flaws that cause no prejudice or
miscarriage of justice.
19. Finally, the State urged that the identification matrix was completely
watertight, pointing out that the de facto complainant (PW-1) positively
identified both petitioners during judicially conducted Test
Identification Parades held on November 01, 2019 and November 27,
2019, while CW-1, the salesman at G.D. Guinea House, positively
identified Petitioner No. 2, Mehebub Alam, in open court as the
individual who used the alias Mosaraf Hossain to buy gold, concluding
that concurrent findings supported by stellar ocular and recovery
evidence should not be disturbed in revisional restraint.
20. Upon consideration of the rival contentions of the parties and the
materials-on-record, the following core questions are formulated for
judicial determination:
(i) Whether the alleged recoveries of ATM cards and articles
suffered from a fatal, incurable breakdown in the chain of
custody due to the non-production of the Malkhana register,
absence of independent seals, and glaring chronological

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anomalies, or whether such lapses were curable procedural
irregularities.
(ii) Whether the Trial Court and the first Appellate Court committed
a grave illegality by relying upon unverified photocopies of tax
invoices (Ext. 4 and 4/1) and uncertified computer-generated
bank passbooks (Ext. 2) without fulfilling the mandatory pre-
conditions of Section 65 of the Evidence Act and Section 65B
certification requirements.
(iii)Whether the evidentiary value of the T.I.P. was completely
vitiated and destroyed by pre-trial police station exposure and
contradictory judicial testimony.
(iv) Whether the trial court committed a gross judicial impropriety
and violation of the doctrine of parity by picking and choosing
identical house-search recovery evidence to acquit co-accused
Nabi Sk., while weaponizing it to convict the petitioners.
(v) Whether unverified past criminal histories or pending cases
against the petitioners-accused were illegally utilized as
substantive proof of guilt and whether the burden of proof was
improperly shifted.
(vi) Whether the concurrent findings of the Trial Court and the first
Appellate Court meet the judicial threshold of a "perverse
judgment" warranting intervention of this Court under Sections
397/401 Cr.P.C.
21. Now, adverting to the first question concerning the legality, sanctity,
and integrity of the alleged recoveries and the foundational chain of

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custody, I must examine the specific and unvarnished admissions
elicited from the prosecution witnesses during the trial. The
Investigating Officer, PW-12 (ASI Jhumpa Mandal), categorically
admitted on oath that no Malkhana register was ever maintained,
seized, or produced before the trial court, and that all purported
incriminating articles remained continuously in her personal,
unsupervised custody. It is an elementary canon of criminal
jurisprudence that the production of the Malkhana register and proper
entries therein form the essential link to prove that seized articles were
kept in safe custody. The absence of such records leaves a wide,
unbridgeable chasm in the prosecution's narrative, exposing the seized
property to the gravest risks of tampering, substitution, and
contamination.
22. This foundational vulnerability is further compounded by the testimony
of independent seizure witnesses, notably PW-3 (Md. Renaul Hoque)
and PW-7 (Soumoyajit Pal). Both witnesses explicitly deposed that the
seized articles, ATM cards, and containers lacked proper seals, gala
impressions, or witness signatures at the time of seizure, thereby
undermining their evidentiary authenticity and failing to satisfy the
mandatory safeguards required under criminal law. Most egregiously,
the prosecution introduced a seizure container, specifically an Amul
Dairy Creamer box, allegedly containing material exhibits, yet the said
box bore a manufacturing and packaging date of November 17, 2019,
which is a full month after the date of the purported seizure on October

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19, 2019. The trial record is completely devoid of any explanation for
this glaring chronological impossibility.
23. Furthermore, a severe quantity mismatch is writ large on the face of the
deposition of PW-4 (Ripon Goswami), who deposed that police official
searched the body of the accused and recovered approximately twenty-
six ATM cards, yet only nine cards were ultimately produced and
marked as exhibits in court, with the remaining seventeen ATM cards
entirely unaccounted for.
24. The legal consequence of such structural infirmities in criminal trials is
well-settled. An examination of the authorities cited by both parties
clarifies their precise applicability to the facts of the present case. The
learned counsel for the petitioners placed heavy reliance upon the
classic rulings in Mohd. Aman (supra) , and Daulat Ram (supra) , wherein
the Hon'ble Supreme Court authoritatively held that when the chain of
custody is broken, and seized articles are kept unsealed or exposed to
tampering without proper safe-keeping records, such recoveries cease
to have any evidentiary value. This principle was reinforced in the
decision of Gurmail Singh (supra) , emphasizing that the non-production
of the Malkhana register is a fatal omission that breaks the essential
chain of custody. These principles find direct application here, given the
total absence of Malkhana entries and the admitted lack of seals.
25. Furthermore, the defence/petitioners appropriately cited recent
pronouncements including Mool Chandra (supra) , and the landmark
ruling of the Supreme Court in Pooranmal (supra) , wherein the Apex
Court reiterated that where structural illegalities, missing

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contemporaneous records, and tampering possibilities (such as
unsealed packaging and glaring chronological container discrepancies)
are writ large across the seizure procedure, the recovery is rendered
entirely inadmissible, making it impossible for a conviction to rest upon
such vitiated foundations.
26. On the contrary, the learned counsel for the State strenuously argued,
relying upon dictums of the Hon’ble Apex Court in Jagmohan Singh
Kuldip Singh Anand (supra) ; Narayan Chetanram Chaudhary (supra) ;
and Naresh (supra) , that minor procedural oversights, ministerial flaws,
or ordinary remissness by an investigating officer do not erode the core
credibility of truthful ocular testimony and direct recovery evidence,
and should not be exploited to vitiate a trial. However, upon a careful
distinguishing of facts, the ratio of the decisions cited by the State
applies exclusively to minor, inconsequential omissions such as minor
delays in dispatching samples or typographical errors in paperwork
where the tamper-proof seal and the Malkhana register remain intact
and unimpeached. That general principle can never be stretched to
cover a fatal structural collapse of the magnitude seen in the present
case, where the seizure container itself bears a future manufacturing
date (a full month after the raid), the Malkhana register is completely
missing, and an unexplained shortfall of seventeen ATM cards exists.
These are not minor ministerial flaws; they strike at the very root and
substratum of the prosecution's recovery matrix.
27. Therefore, upon a strict appraisal of the evidence and the correct
application of legal precedents, I have no hesitation in holding that the

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alleged recoveries are completely vitiated, non est in the eye of law, and
cannot form the foundation of a criminal conviction. Both the Trial
Magistrate and the First Appellate Court committed a grave perversity
in law by dismissing these monumental failures as mere "defective
investigation."
28. I now take up the second question for discussion concerning the
legality, admissibility, and evidentiary value of the documentary and
electronic outputs relied upon by the prosecution to establish financial
siphoning, bank account details, and commercial gold purchases,
specifically the bank passbook printout (Ext. 2), the tax invoice (Ext. 4),
and the merchant copy/POS slip (Ext. 4/1).
29. A careful examination of the trial records and the depositions of key
witnesses reveal profound infirmities in how these documents were
brought on record. Regarding the de facto complainant's bank passbook
(Ext. 2), the Investigating Officer, PW-12, explicitly admitted during
cross-examination that she failed to produce any formal seizure list,
requisition, or contemporaneous record to show how or when the
passbook was seized during the investigation. Despite this total absence
of foundational link evidence, the passbook which is fundamentally a
computer-generated ledger printout maintained by a bank was marked
as an exhibit merely through oral testimony. Similarly, the tax invoice
(Ext. 4) and merchant copy (Ext. 4/1) were tendered through trade
witnesses such as PW-2 (Abdur Rouf, seizure witness of G.D. Guinea
House). During cross-examination, PW-2 candidly admitted that these

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documents were mere photocopies and that the original invoice and
merchant copy were never found, traced, or produced before the court.
30. To assess the legal sustainability of admitting such documentation, this
Court must measure these exhibits against the absolute strictures of
the law governing secondary and electronic evidence, while carefully
examining the judicial precedents relied upon by the rival parties.
Under Sections 61 and 64 of the Indian Evidence Act, the contents of
documents must, as a primary rule, be proved by primary evidence (the
original document itself), unless a proper foundational case for leading
secondary evidence is established under the strict parameters of
Section 65. The learned counsel for the petitioners rightly referred the
recent authoritative pronouncements of the Hon’ble Supreme Court in
Tharammel Peethambaran (supra) , and Pooranmal (supra) . In these
decisions, the Hon’ble Apex Court reiterated that secondary evidence of
a document is strictly inadmissible unless the statutory pre-conditions
proving the existence of the original and accounting for its loss or non-
production under the specific clauses of Section 65 of the Evidence Act
are rigorously fulfilled. In the instant case, the prosecution neither laid
any foundation under Section 65 nor accounted for the missing
originals of the tax invoices, rendering photocopies like Exhibits 4 and
4/1 entirely dead in the eye of law.
31. Furthermore, because these documents particularly the bank passbook
ledger (Ext. 2) and transaction merchant slips, represent information
stored or generated electronically, they are squarely governed by the
special and mandatory provisions of Sections 65A and 65B of the

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Indian Evidence Act. As consecrated by the landmark Constitution
Bench ruling of the Hon’ble Supreme Court in Anvar P.V. v. P.K.
Basheer (supra) which has been consistently reaffirmed, a certificate
under Section 65B(4) of the Indian Evidence Act is a mandatory
condition precedent to the admissibility of any electronic record or
computer-generated output. Oral testimony or mere exhibit-marking
cannot cure this inherent statutory defect. In the case at hand, not a
single Section 65B certificate was produced at any stage of the trial with
respect to the bank ledger or electronic transaction logs.
32. To compound this fatal omission, the prosecution also ignored the
mandatory requirements of the Bankers' Books Evidence Act, 1891,
which dictates that bank account entries can only be proved by
producing original books or certified copies accompanied by the
statutory certificate under Section 2A of the said Act. As emphasized by
the Hon'ble Supreme Court in Ram Pal Singh Bisen (supra) at
Paragraphs 25-27, the mere marking of a document as an exhibit by
the court is merely for identification purposes and does not dispense
with the mandatory requirement of proving its contents through
primary or legally admissible evidence.
33. Per contra, the learned counsel for the State attempted to salvage these
exhibits by relying on general propositions that formal defects in
document introduction should not override substantial justice.
However, upon distinguishing the facts, the general authorities cited by
the State pertain to situations where primary documents were duly
accounted for or where secondary foundations under Section 65 of the

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Indian Evidence Act were substantially laid during trial. Those
principles have no application here, where unverified photocopies of
invoices and uncertified computer bank printouts are introduced
without a shred of compliance under Section 65 of the Evidence Act or
without Section 65B certification.
34. Despite these binding statutory mandates and judicial dictums, both
the Trial Magistrate and the First Appellate Court committed a patent
and manifest error of law. They utilized these unverified photocopies
(Ext. 4 and 4/1) and uncertified bank passbook entries (Ext. 2) as
substantive pillars of guilt, treating them as proved documents merely
because they bore exhibit numbers. The Appellate Court, while
acknowledging certain investigative flaws, completely glossed over the
absolute inadmissibility of these electronic and secondary outputs,
without independent application of judicial mind.
35. Accordingly, upon a rigorous analysis of the statutory provisions, the
settled propositions of law, and the proper distinguishing of cited
precedents laying down evidentiary principles laid down by the Hon’ble
Supreme Court, I hold that Exhibits 2, 4, and 4/1 are legally
inadmissible in evidence, having been brought on record in patent
violation of Sections 63, 65, and 65B of the Indian Evidence Act,
Section 2A of the Bankers' Books Evidence Act. The concurrent findings
of the learned Trial and First Appellate Courts, resting upon these dead
documents are perverse and legally unsustainable.
36. Now this court takes up the evidentiary value of the Test Identification
Parade (T.I.P.) and the subsequent dock identification. A scrutiny of the

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deposition reveals a deeply compromised identification process. The de
facto complainant, Karuna Bala Adhikary (PW-1), made a devastating
and fatal admission during her cross-examination when she candidly
stated: "The accused persons were shown to me at the police station by
the police officer." It is an elementary and foundational canon of
criminal jurisprudence that a Test Identification Parade is conducted
during investigation primarily to test the initial version of the witness
and to ensure that the investigating agency is moving against the right
individuals. However, the foundational premise of a T.I.P. is completely
destroyed if the suspect is exhibited/exposed to the identifying witness
at a police station prior to the parade. Once pre-trial police station
exposure occurs, any subsequent identification in a T.I.P. or in court
ceases to be an independent recollection of the witness and becomes
merely a reflection of police-induced familiarity.
37. This grave infirmity is further compounded by an irreconcilable and
startling contradiction between the official court record and the oral
testimony of the Judicial Magistrate who conducted the parade (CW-2).
The Magistrate deposed during trial that a witness (PW-3) had
successfully identified the petitioners during the T.I.P., whereas the
contemporaneous, official T.I.P. records (Ext. 14) explicitly establish
that PW-3 had completely failed to identify them. When the oral
testimony of a judicial officer flatly contradicts contemporaneous official
court documents, the sanctity of the entire identification exercise
collapses. Furthermore, PW-3 made the damaging admission that he
was never interrogated by the police during investigation and was

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making statements for the first time in court, rendering his testimony
entirely unsafe.
38. To evaluate the legal consequences of such fatal flaws, this Court is
guided by the authoritative pronouncements of the Hon’ble Supreme
Court and this High Court, while carefully distinguishing the
authorities cited by the contesting parties. The learned counsel for the
petitioners rightly placed heavy reliance upon the landmark ruling of
the Supreme Court in Shaikh Umar Ahmed Shaikh (supra) , wherein at
Paragraph 8, the Hon’ble Apex Court held that if accused persons are
shown to the witnesses before the identification parade is held, the very
purpose of holding the identification parade is lost and the evidence of
identification of the accused at the trial becomes valueless. This
principle was echoed by the Hon’ble Division Bench of this Court in
Habal Shaikh (supra) , wherein it was authoritatively ruled that pre-trial
police station exposure and vague, uncorroborated dock identifications
destroy the evidentiary value of identification, making it wholly
impermissible to base a conviction thereon.
39. Furthermore, the identification evidence suffers from another fatal
structural defect: vagueness in court. The record demonstrates that
multiple prosecution witnesses spoke generically of "two or three
unknown persons" without naming, describing, or specifically pointing
out which petitioner corresponded to which role. Since co-accused Nabi
Sk. was acquitted, and no specific attribution was recorded by the trial
court or prosecutor during dock identification, a generic pointing to an
undifferentiated group fails to legally fix culpability upon Petitioner No.

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1 (Dilwar Hossain) or Petitioner No. 2 (Mehebub Alam). The Hon’ble
Supreme Court, in Sujit Biswas (supra), at Paragraphs 13–19 of the said
report propounded that, suspicion, however grave, can never take the
place of legal proof, and in the absence of a reliable, unblemished
identification chain, the prosecution cannot bring home the charge.
40. Per contra , the learned counsel for the State attempted to defend the
identification matrix by relying on general rulings such as Naresh
(supra) , and Bhagwan Jagannath Markad (supra) , arguing that minor
discrepancies in identification or minor lapses by witnesses should not
be magnified to throw out a genuine prosecution case. However, upon
distinguishing facts, those rulings apply where identification is
supported by independent, untainted circumstances and unimpeached
dock testimony. In the present case, where the principal identifying
witness (PW-1) admits to pre-trial police station show-ups, where the
Magistrate’s oral testimony directly contradicts official T.I.P. records
(Ext. 14), and where witnesses like PW-3 were never interrogated during
investigation, the State's reliance on generalities must fail.
41. The learned counsel for the petitioners has rightly contended that pre-
trial police station exposure and dock identification following improper
parade procedures render the identification evidence legally worthless.
Both the Trial Court and the First Appellate Court completely failed to
appreciate this glaring vitiating circumstance, brushing aside the pre-
trial exposure as a minor irregularity. Such an approach is patently
perverse. Consequently, I hold that the identification of the petitioners

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through the T.I.P. stands vitiated and cannot be relied upon to connect
the petitioners with the alleged crime.
42. I now proceed to the fourth question for determination namely, whether
the trial court committed a gross judicial impropriety and a flagrant
violation of the doctrine of parity.
43. The doctrine of parity in criminal sentencing and evaluation of evidence
is a facet of Article 14 of the Constitution of India. It dictates that where
two or more co-accused stand trial on identical or indistinguishable
allegations, supported by the exact same quality of evidence, a court
cannot adopt a dual standard acquitting one while convicting another.
To do so manifests clear judicial arbitrariness and perversity.
44. A meticulous perusal of the trial court's judgment reveals a glaring
judicial double standard. The prosecution levelled identical allegations
of house-search recoveries of third-party ATM cards against co-accused
Nabi Sk. as well as the present petitioners namely, Dilwar Hossain and
Mehebub Alam. While evaluating this identical house-search recovery
evidence, the learned Chief Judicial Magistrate, Malda chose to
disbelieve the recoveries and honourably acquitted co-accused Nabi Sk.
Yet, in the very same breath and upon the exact same quality of flawed,
unsealed, and uncorroborated recovery evidence, the trial court turned
around and convicted the present petitioners.
45. The first Appellate Court mechanically glossed over this blatant
anomaly, failing to realize that once identical recovery evidence is
discarded as untrustworthy for one co-accused, it cannot legally form

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the sole basis of conviction for another co-accused standing on the
same footing.
46. The learned counsel for the petitioners has rightly drawn support from
the landmark rulings of the Hon'ble Supreme Court in Javed Shaukat
Ali Qureshi (supra) , and the recent Hon’ble Division Bench judgment of
this Court in Manjur Sk. @ Manjur Shaikh (supra) , wherein it has been
authoritatively held that selective appreciation of identical evidence to
convict one accused while acquitting another violates the foundational
doctrine of parity and vitiates the judgment.
47. In view of this glaring double standard, the conviction of the present
petitioners cannot be sustained on any known principle of judicial
consistency.
48. I shall now take up the fifth question for determination: whether
unverified past criminal histories or pending cases against the
petitioners were illegally utilized as substantive proof of guilt and
whether the burden of proof was improperly shifted.
49. It is a cardinal and sacrosanct principle of criminal jurisprudence in
India that an accused is presumed innocent until proven guilty beyond
reasonable doubt, and the burden of establishing guilt rests squarely
and unshiftingly on the prosecution from inception to end.
Furthermore, past criminal antecedents or pending criminal cases
against an accused are strictly inadmissible as substantive proof of
commission of the crime for which he is currently on trial; they can, at
best, be considered only at the stage of sentencing if a conviction is
independently secured on legally admissible evidence.

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50. In the case at hand, a disturbing feature emerges from the judgments of
the learned Trial Magistrate and the First Appellate Court. The trial
court heavily leaned upon unverified past criminal histories and
pending cases attributed to the petitioners, weaponizing them as
substantive proof of criminal propensity to bridge the gaping holes in
the prosecution's evidence. Furthermore, in examining the accused
under Section 313 of the Code of Criminal Procedure, the learned Trial
Magistrate drew adverse inferences against the petitioners for failing to
prove their innocence, thereby committing a grave illegality by shifting
the onus of proof onto the defence.
51. It is axiomatic that no matter how weak the defence may be, the
prosecution must stand on its own legs and prove its case beyond a
shadow of doubt. The shifting of the burden of proof and the use of
unverified past histories to establish current guilt strikes at the very
root of a fair trial. The concurrent findings resting on such extraneous
and impermissible considerations are wholly perverse and
unsustainable in law.
52. Having meticulously analyzed all the formulated points of determination
namely, the total breakdown of the chain of custody, the absolute
inadmissibility of secondary and electronic documents under Sections
65, 65B, and the Bankers' Books Evidence Act, the vitiation of the T.I.P.
through pre-trial police exposure, the blatant violation of the doctrine of
parity vis-à-vis the acquitted co-accused, and the illegal utilization of
unverified criminal histories to shift the burden of proof, I find that the
concurrent judgments of conviction and sentence rendered by both the

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courts below suffer from monumental perversity, total non-appreciation
of evidence, and gross manifest errors of law.
53. While this Court is fully conscious of the self-imposed limitations under
revisional jurisdiction pursuant to Sections 397 read with Section 401
of the Code of Criminal Procedure, wherein re-appreciation of evidence
is generally discouraged, it is equally well-settled that when concurrent
findings are founded on no evidence, inadmissible materials, and a
complete disregard for settled canons of criminal jurisprudence, such
findings cross the threshold of a "perverse judgment," warranting
immediate revisional intervention to prevent a gross miscarriage of
justice, as illuminated in Sanjaysinh Ramrao Chavan (supra) , and
Manjir Chatterjee (supra) .
54. Accordingly, the revisional application being C.R.R. No. 1781 of 2022
is hereby allowed .
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55. The judgment and order dated March 15, 2022, passed by the 5 Court
of the learned Additional Sessions Judge, Malda, in Criminal Appeal No.
04 of 2021, affirming the judgment of conviction and sentence dated
November 16, 2021, passed by the learned Chief Judicial Magistrate,
Malda, in Cyber Crime P.S. Case No. 05 of 2019, are hereby set aside .
56. The petitioners, Dilwar Hossain and Mehebub Alam , are hereby
acquitted of the charges levelled against them in the said proceeding
under Sections 419/120B and 420/120B of the Indian Penal Code,
1860, on the ground of benefit of doubt.
57. The petitioners be set at liberty forthwith, if not wanted in connection
with any other case. Fine, if paid, shall be refunded to them.

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58. Pending Connected application(s), if any, are also disposed of
accordingly.
59. Interim orders, if any, stand vacated.
60. There shall be no order as to costs.
61. Let a copy of this judgment along with the Trial Court Records (T.C.R.)
be transmitted to the learned Trial Court forthwith for necessary
information and compliance.

62. Case diary, be returned to the Learned Counsel for the State.
63. Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.

(Uday Kumar, J.)