SUBAL BAIDYA, J. - (1.) THIS Criminal Appeal is directed against the judgment of conviction under Section 302/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life with fine of Rs. 5000/ - with default clause passed by the learned City Sessions Judge, 12th Bench, Calcutta in a Sessions Trial arising out of Sessions Case No. 80 of 2003.
(2.) THE appeal was admitted vide order dated June 9, 2005 and the appellants' prayer for bail pending hearing of the appeal was rejected vide order dated April 20, 2006. The background fact of the prosecution case out of which the Criminal Appeal No. 309 of 2005 is arising is as follows: one Mustaque Ahmed residing at 17/2, Smith Lane, Kolkata - 13, P.S. Taltala is the owner of a bookshop facing towards east styled as Hyder Ali book seller at 22, Rafi Ahmed Kidwai Road, Kolkata ­ 16. On April 11, 2003 at about 20.40 hours he came to his shop from his residence and sat in his shop to run his business and at about 20.50 hours on that day he heard a hue and cry and noticed that in front of his shop on the tram -line on Rafi Ahmed Kidwai Road four persons were in hot altercation and out of them two persons carrying Choppers were in hot altercation with two others and suddenly he heard a shouting of cry and noticed one person came in front of his shop and fell down on the western side in front of premises No. 22, Rafi Ahmed Kidwai Road and another person also fell down on the road and they were lying in a pool of blood coming out of their persons profusely. The other two persons who assaulted the said two persons went away along Rafi Ahmed Kidwai Road towards Goltala and thereafter the local people removed the two injured persons to a hospital where they got admitted in a precarious condition and he would be able to identify the miscreants if he saw them again.
(3.) ON the basis of this statement of Mustaque Ahmed New Market Police Station Case No. 113 dated April 12, 2003 was started by the police and on completion of investigation the Investigating Officer submitted the charge -sheet under Section 302/34 of the Indian Penal Code. Thereafter, both the appellants were placed on trial to answer the charge under Section 302/34 of the Indian Penal Code before the learned City Sessions Judge, 12th Bench, Calcutta. During trial prosecution has examined as many as 33 witnesses. PW 1, ASI of Calcutta Police attached to Detective Department, Calcutta prepared the rough sketch map and the final sketch map of the place of occurrence and PW 4, constable attached to the same department took the photographs of the place of occurrence and also the photographs of two deceased identified by a constable of New Market Police Station in the morgue. PW 3, an assistant record keeper attached to Mission of Mercy Hospital (previously known as Assembly of God Church Hospital) supplied the medical treatment sheets of deceased Mansur Ali and Tafsir Ahmed Khan on April 14, 2003 to the Police Officer of New Market Police Station who seized the same under seizure list. PW 2, Ruhi Begam is the wife of deceased Mansur Ali. PW 5 is the friend of PW 20, the younger brother of PW 2. PW 6 is the cousin of deceased Mansur Ali. PW 7, constable attached to New Market Police Station as per direction of Sri D. Banerjee, S.I. of police (Investigating Officer) carried the dead body of Tafsir Ahmed khan to Calcutta Police morgue and identified the said dead body to the Magistrate who held inquest over the said dead body and also took the dead body of deceased Mansur Ali to the police morgue and identified the dead body of the deceased Mansur Ali to the Magistrate holding inquest over the said dead body. PW 8, Deputy Manager of system Control Department, C.E.S.C. at Poddar Court, 18, Rabindra Sarani, Kolkata deposed regarding any interruption of supply of electricity at 22, Rafi Ahmed Kidwai Road and its surroundings on April 11, 2003 in between 20 hours and 22 hours. PW 9, PW 10 and PW 11 are the medical officers attached to Mission of Mercy Hospital who treated both the deceased in that hospital when removed them there. PW 13 is the brother -in -law of the deceased Tafsir Khan. PW 14 identified both the appellants who stabbed both the deceased on Rafi Ahmed Kidwai Road. PW 15, driver of Auto -ricksaw took the injured Mansur Ali and Tafsir Ahmed Khan to Mission of Mercy Hospital where they succumbed to their injuries. PW 16, as Metropolitan Magistrate held T.I. Parade in Presidency Correctional Home in respect of both the appellants. PW 17 used to work as a manager of Wasim Lodge located at 22, Rafi Ahmed Kidwai Road in the month of April, 2003. PW 18, a resident of Meerut, U.P. having leather business was in Calcutta on April 11, 2003 with whom both the deceased came to meet in the evening in the Wasim Lodge. PW 19, having leather business used to tan leather after receiving leather from the customers and stated that Kallu (appellant) was under obligation to pay Rs. 50,000/ - to him in respect of the business which he used to deal in. PW 20 Imran Ahmed is the brother -in -law of victim Mansur Ali. PW 21 and PW 24 are the two seizure witnesses in respect of seizure of a knife brought out by the appellant Kallu from the bush of south -western corner of the tank located at Goltala Park. PW 12, a fruit seller, PW 14, a passer -by and PW 22, a technician then working in a spectacle manufacturing firm are the eye - witnesses to the occurrence. PW 23 held the post mortem examination of the dead body of the deceased Mansur Ali and Tafsir Ahmed Khan. PW 25 is the maker of the statement treated as FIR. PW 26 is a witness to the seizure of leather chappals, hawai chappals, knife and blood seized from the place of occurrence and PW 27 is attached to C.I.D., West Bengal as Examiner of Questioned Documents and PW 28, S.I. of Police brought the two appellants to Calcutta as per order of the learned Chief Judicial Magistrate, Gaziabad. PW 29 is the Receptionist -cum -Manager of Standard Guest House at 84, Rabindra Sarani. PW 30 is a senior Scientific Officer, Photo Print Section, Forensic Science Laboratory, Government of West Bengal. PW 31, Receptionist -cum -Manager of Standard Guest House is a witness to the seizure of Registers in respect of booking of rooms in their hotel at 84, Rabindra Sarani. PW 32 is a witness to the seizure of leather chappals, hawai chappals and a big knife, blood stained mud from the place of occurrence. PW 33 is the Investigating Officer. On the other hand, the defence has examined two witnesses and out of them the DW 1 is a professional photographer who took the snaps of the park, the tank of Goltala Park, Muslim Institute, the premises no. 22, Rafi Ahmed Kidwai Road from its outside, tram -line and around of Rafi Ahmed Kidwai Road, the shops at nearby 22, Rafi Ahmed Kidwai Road and its adjoining premises and also the church located just opposite to the entrance gate of Muslim Institute and DW2 is a fruit seller who used to sell fruits sitting on the footpath in front of Muslim Institute since last 30 years. ;