- (1.) The Appellants Md. Kuddus Alam @ Kuddus Alam @ Md. Alam @ Kuddus Ansari and Md. Eklakh @ Eklakh were placed on trial before the learned Judge, 9th Bench, City Sessions Court, Calcutta to answer charges under Section 302/34 IPC, under Section 364/34 IPC and under Section 201/34 IPC. In the said trial they were found guilty for all the offences, they were charged with and accordingly convicted under Section 302/34 IPC, under Section 364/34 IPC and under Section 201/34 IPC and thereunder sentenced to suffer imprisonment for life and to pay a fine of Rs. 2,000/- and in default to suffer rigorous imprisonment for a further period of one year, to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 2,000/- and in default to suffer rigorous Imprisonment for further period of one year and to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for six months. Hence, this appeal.
(2.) Shorn of details the prosecution case is as follows; On August 13, 1994 in the morning at about 7 a.m., Md. Hadish dropped his son at his school Progressive Day School and went to his place of employment. In the evening when he returned home he was reported by his wife that his son has not returned from school. Immediately Md. Hadish came out for search of his son and went to the places where his son used to go for play and also to some other places. During such search he met one Lal Md., the landlord of 36, Aga Mehendi Street, Calcutta who reported him that after school hours he saw his son with the accused Kuddus. The Darwan of the building also told him the same thing that he had seen his son with the accused Kuddus and also told after few minutes both Kuddus and his son left their building. Thereafter, he met one Alimuddin, the elder brother of the father-in-law of the Appellant Md. Kuddus but he could not tell him anything. On the next morning, i.e. on August 14, 1994 he went to the school of his son and came to learn from the darwan of the school that after school hours when his son Haroon with his classmate one Golam Sabbir came out from the school he was called by a person standing on the opposite footpath. Thereafter, on being advised by the secretary of the school he lodged a missing diary with the local police station. In the meantime, at around 3 p.m. Md. Hadish received a telephone call at his factory from an anonymous caller, who asked him to come at Picnic Garden at about 8 p.m. with Rs. 25,000/-, otherwise his son's life would be at stake. Md. Hadish in response to the call went to Picnic Garden and waited for few hours after 8 p.m. but did not find anybody. Thereafter, on being advised by his friends and relations he informed the Park Street Police Station about the receipt of such demand of ransom and apprehending some foul play behind the missing of his son. In the meantime, Md. Hadish met S.K. Sahabuddin, who having his grocery shop near Taltala area, who told him on August 13, 1994 he saw his son in the company of Appellant Kuddus and another when his son was in school uniform. Then again he was informed by one of his friend Md. Nasim that day while he was trying to find out a taxi for going to Park Street, a taxi was found near Taltala area but the taxi driver refused to go to Park Street, at that time Kuddus and another came there with a big trunk and asked the taxi driver to take them to Howrah Station. On being asked by Nasim, Kuddus told him he was supposed to drop his friend at Howrah Station and is not going to his native. As the taxi driver refused to take him to Park Street for lodging complaint against him to the police Nasim noted down the number of the taxi. Then again Md. Hadish reported the further development in the matter. On August 16, 1994 that the school of his son received an intimation over phone that a dead body of a child was found at Barielly Station concealed in a trunk and the whereabouts of the boy was ascertained from his school uniform and bag. Since Md. Hadish was very much mentally perturbed, his brother Md. Safique and brother-in-law Sahabuddin accompanied a police team to Barielly and identified the dead body as that of his son. In course of investigation the police arrested both the Appellants, on the basis of information they collected from different persons showing their alleged complicity in the commission of the offences and after completion of investigation submitted charge-sheet against them. In course of the trial, in absence of any eyewitnesses to the occurrence, the prosecution proceeded to prove its case on circumstantial evidence and examined as many as 39 witnesses and exhibited several documents and materials collected with the offences. Whereas the defence examined none and it was their case of complete innocence.
(3.) The main thrust of the argument of the learned Counsel of the defence is this that there is no eyewitness to the occurrence and the prosecution case entirely rests on circumstantial evidence, however none of the circumstances relied upon by the prosecution against the Appellants has been proved beyond all reasonable doubt. He pointed out that this is a case where there are very serious contradictions in the evidence of the witnesses on very material and vital aspects. Although, the case is based on circumstantial evidence no motive behind the crime has been proved. The Court has relied on the evidence of a child witness but before acting on that never assessed the ability of the child to understand the questions put to him and to give rational answers. It was also contended, the most of the witnesses are interested witnesses being the relations of the informant or his acquaintances and rests are planted witness, who came to depose before the Court at the behest of the police. The decision of the Trial Court entirely rests on surmises and conjectures there is no supporting material. On the other hand, the learned Public Prosecutor vehemently urged that this is a case which is full proved there is no infirmities in the prosecution case and all the circumstances have been proved beyond all reasonable doubt. He further submitted all the witnesses were cross-examined at length but defence has miserably failed to bring out anything from them to touch their credibility.;