J.N. Patel, C.J. - (1.) IN Sessions Trial No.1(12)/1998 held before the Additional Sessions Judge, 2nd Court, Alipore the appellant John Santosh Gomes was tried on the charge of having committed murder of Sourav Das alias Tupai aged about 3 years, son of Samir Das, P.W.4 and by judgment and order dated 16.4.1999 the appellant was found guilty and convicted for having committed offence under Section 302 of the INdian Penal Code and thereby sentenced to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 3,000/-, in default to suffer Rigorous Imprisonment for one year.
(2.) IT is the prosecution case that the appellant John Santosh Gomes was given shelter by Samir Das, P.W.4 who permitted him to reside in his house as he was driven out from his house by his father. On 14.8.1998 at about 10.00 p.m. Samir Das, P.W.4 complainant along with his elder son Soumya Das alias Babai had gone to attend a marriage ceremony leaving his younger son Sourav alias Tupai in care of the appellant-accused. At midnight when he returned from the marriage ceremony he saw, appellant-accused, and his son sleeping on the cot of their room i.e. on the first floor. Therefore, he did not disturb them and he along with his elder son came to the ground floor and slept in the room which was occupied by appellant-accused. At about 6.00 a.m. in the morning when Samir Das, P.W.4, complainant went to call appellant-accused he found that he was not there and his younger son Sourav Das alias Tupai was lying dead in the cot with throat cut injury and blood was emitting from his throat. Therefore, he informed Entally Police Station. When police arrived at the place of occurrence Samir Das, P.W.4 gave the report (FIR Ext.3) and he suspected that appellant-accused murdered his son and fled away. The investigation of the case was done by S.I. A. Ahmed, P.W.21 who recorded statements of witnesses and carried out seizure of articles from the place of occurrence and sent the deadbody to NRS Morgue for the purpose of conducting post-mortem examination. It is the case of the prosecution that the appellant-accused came to be arrested on the same day at 19.15 hours near the western side gate of Padma Pukur Park. On his arrest, the appellant-accused was brought to the place of occurrence and at his instance one reddish napkin was seized in the presence of witnesses vide seizure list Exbt.4/9. The investigating officer also seized various other articles viz. pillows, shirt, bed sheet (Exbt.4/8) and wearing apparels i.e. gangee, half pant from the appellant-accused vide Exbt. 4/10. Thereafter, on completion of the investigation and receipt of the report from the FSL, a chargesheet came to be filed against the appellant-accused.
(3.) THE appellant-accused pleaded not guilty to the charge and claimed to be tried. He has taken a defence of complete denial. On completion of the trial, the trial Court came to a finding that the appellant-accused has committed murder of Tupai and accordingly, convicted him, against which this appeal has been filed. It is the contention of the learned counsel appearing for the appellantaccused that the appellant-accused has been arrested and prosecuted in the case mainly on the basis of suspicion. It is submitted that the appellant-accused never resided in the house of Samir Das, the complainant, P.W.4, the father of the victim. It is submitted that there is no material or evidence laid before the Court to show that the appellant-accused has committed the murder.;