Md. Mumtaz Khan, J. - (1.) THE above appeals have been preferred by the appellants assailing the judgment and order of conviction and sentence dated May 29th, 2013 passed by Additional District and Sessions Judge, 4th Court, Malda in Sessions Trial No. 42 of 2011 arising out of Sessions Case No. 326 of 2011. By virtue of the impugned judgment appellants have been convicted for the offence punishable U/s. 302/201/34 Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/ - each in default to undergo simple imprisonment for six months for the offence under section 302/34 IPC and to suffer rigorous imprisonment for five years and to pay a fine of Rs. 10,000/ - each in default to undergo simple imprisonment for six months each for offence under section 201/34 IPC with a direction that both the sentences will run concurrently. The prosecution case, in brief, as follows: - On July 4th, 2009 at 09.15 hrs. a written complaint was lodged at the English Bazar P.S., Malda, by Sailender Mallick, P.W.1, stating therein that on July 3rd, 2009 at about 5 p.m. in the evening his brother Lalit Mallik went out from house and did not return back and on that day (July 4th, 2009) at about 07 a.m. in the morning P.W.2, informed him that someone after killing his brother has left his body in the drain of railway quarter of Barrack Colony. He then went there and found the dead body to be of his brother.
(2.) ON the basis of the said complaint case started against some unknown miscreants and investigation ensued and after completion of investigation charge sheet and subsequently supplementary charge sheet U/s. 302/34 IPC was filed against the appellants. Charge was framed on November 14th, 2011 against the appellants U/s. 302/34 IPC and when they pleaded not guilty to their involvement in the crime they were put to trial. Prosecution examined 15 witnesses including the complainant, his cousin brothers, uncles, villagers, rickshaw pullar besides the police personnels, doctor and IO and produced FIR, seizure list, inquest report, PM report, FSL and serological test reports etc. and one 'dao' which were marked exhibits 1 to 19 and Mat. Exhibit -I. After completion of trial and after examining the appellants u/s 313 Cr.P.C. learned Additional District & Sessions Judge, Malda, vide judgment and order dated May 29th, 2013 found them guilty of the offence punishable U/s. 302/34 IPC and 201/34 IPC and sentenced them to suffer rigorous imprisonment for life and fine of Rs. 10,000/ - in default to undergo simple imprisonment for six months for the offence under section 302/34 IPC and rigorous imprisonment for five years and fine of Rs. 10,000/ - in default to undergo simple imprisonment for six months for offence under section 201/34 IPC and the sentence so imposed were directed to run concurrently. Being aggrieved from the aforesaid judgement, the appellants have preferred the instant appeals and the grounds raised in the appeals is that the Learned Court below did not consider the facts and circumstances of the case and the evidence on record in its proper perspective and made a wrong approach to the whole case and accordingly prayed for setting aside the impugned judgment and order of conviction and sentence.
(3.) MS . Minati Gomes, learned Advocate appearing on behalf of the appellants has submitted that there is no eye witness to the incident in question and the entire case is based on circumstantial evidence and the circumstances from which the conclusion of guilt has been drawn has not been fully established and as such the impugned judgment and order of conviction and sentence passed by Ld. Court below is liable to be set aside. Our attention was drawn to the following facts on the basis of materials on record: - 1. According to the FIR victim went out from his house in the evening of July 3rd, 2009 but there is no evidence on record to show that he was seen in the company of these appellants and/or that they were last seen together. 2. In the case of circumstantial evidence motive has a very important role to play but in the instant case prosecution has failed to prove the motive behind the death of the victim. 3. In the instant case charge was framed against the appellants for the commission of the offence U/s. 302/34 IPC and no such charge was framed for the offence U/s. 201/34 IPC but in spite of that appellants have been convicted for the offence U/s. 201/34 IPC. 4. No such statement of the accused leading to the alleged recovery of the weapon of offence as claimed by the I.O. had been recorded. There are also contradictions relating to the recovery of the weapon of offence in between the statement of seizure witnesses namely P.W.8 and P.W.11. According to P.W.8 police went inside the house of accused Hukka and taken out one dao from his house whereas according to P.W.11, Hukka brought out dao from his quarter.;