- (1.) This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated July 8, 2002 passed by the Ld. Additional District and Sessions Judge, Fast Track Court, Diamond Harbour, South 24- Parganas in S.T. NO. 10(3) 2002 arising out of S.C. No. 6(7) 2002 [G.R. Case No. 1331/96]. By virtue of the impugned judgement and order appellant has been convicted for the commission of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 10,000/- in default to suffer simple imprisonment for two years while Menoka Mondal was found not guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and was acquitted under Section 235 Cr.P.C. and was discharged from bail bond.
(2.) The prosecution case, in brief, as follows:- On November 13, 1996 at 18.15 hours Basudeb Purkait (P.W.1) lodged a complaint at the Mathurapur P.S., District South 24-Parganas stating therein that on that date at about 2.30 p.m. while he was running his grocery shop in his village his neighbour Mohadeb Mondal came running there and informed him that a while ago at about 2.00 p.m. appellant, Gour Hari Mondal and his wife have hacked his brother Tapas brutally in the paddy field of Karindra Kayal situated at Sharatnagar Village on the eastern side of the village path about 16/18 'Rashi' from their village. On hearing this he started running towards the place and on the way he saw the village people were brining his brother on a van in bleeding condition to the P.S. He also joined them and went to the P.S. According to his letter of complaint, he came to learn from Dulal Chandra Halder, (P.W.2), an eye witness to the occurrence, the manner in which appellant with the assistant of his wife assaulted his brother by a sharp cutting weapon and if he (P.W.2) had not shouted calling the villagers they would have killed his brother on the spot.
(3.) On the basis of the above complaint a case was started at Mathurarpur P.S. against the appellant and his wife U/s. 326/307/34 IPC and investigation ensued and on completion of investigation charge sheet was submitted against the appellant and his wife Smt. Menoka Mondal U/s. 326/307/34/302 IPC. Charge was framed against the appellant and his wife Menoka Mondal on March 18, 2002 U/s. 302/34 IPC and when they pleaded not guilty to the charges, trial commenced. Prosecution examined 15 witnesses including the complainant, his brother, wife of the victim, villagers, doctors and the police officers and also produced and proved the FIR, rough sketch map with index, surathal report, injury report, P.M. report etc. (Exbts. 1-7). Thereafter on completion of trial and after examination of the appellants U/s.313 Cr.P.C. learned court bellow passed the impugned judgement. Being aggrieved by and dissatisfied with the impugned judgement, order of conviction and sentence appellant has preferred the instant appeal and the ground raised in the appeal is that learned court bellow did not take into consideration the facts and circumstances on the case and evidence-on-record on proper perspective and passed the impugned judgement, order of conviction and sentence and accordingly prayed for setting aside the impugned judgement, order of conviction and sentence passed by the learned court bellow. It is submitted by the learned advocate for the appellant, at the very outset, that the guilt of the appellant was not proved on the basis of the deposition of eye witnesses and the case of the prosecution was full of contradictions and lacuna and as such appellant is entitled to get the benefit of the same.;