Debasish Kar Gupta, J. - (1.) THIS appeal is directed against a judgment and order of conviction dated July 30, 2008 and sentence dated July 31, 2008 passed by the Court of Additional Sessions Judge, 1st Fast Track Court, Lalbagh, Murshidabad in Sessions Trial No. 3 of January, 2008 arising out of Sessions Sl. No. 102 of 2005, convicting the appellant for commission of offence under Section 302 of the Indian Penal Code, 1973 (hereinafter referred to as the I.P.C.) and sentencing him to suffer imprisonment for life and to pay fine of Rs. 10,000/ -, in default, to suffer simple imprisonment for one year. It was further directed that fine amount if realized be deposited in the name of minor child of deceased Shyamal Haldar in any nationalised bank or in post office under Fixed Deposit Scheme till the minor attains majority.
(2.) THE prosecution case in a nutshell is as under: - On April 20, 2005 at about 19.00 hours six/seven persons including one Shayamal Haldar, the victim and the appellant held a meeting at Swaraswati Mandir on fishing at river Bhagirathi an altercation took place in between Sukumar Haldar (PW 1) and the appellant in the above meeting. Ultimately, a decision was taken to hold a meeting for above discussion on April 21, 2005 at 20.00 hours with the residents of Village - Natun Sinham, Police Station -Lalgola, District -Murshidabad at the Flood Centre of the above village. The PW 1 attended the above meeting on April 21, 2005. Shyamal Haldar, (the brother of PW 1), elder brother Sri Manik Chandra Haldar (PW 2), Kanai Haldar (PW 3), Arjun Haldar (PW 4) and the appellant attended the above meeting. In the above meeting the victim protested a comment made by the appellant in filthy language. Suddenly, the appellant jumped on the victim and assaulted him on his chest repeatedly with a sharp cutting knife. As a consequence, there was profuse bleeding from the injuries sustained by the victim. The appellant fled away through the bamboo grove. The victim had been removed to the Krishnapur Hospital, District - Murshidabad and the doctor of the above hospital declared him dead. On April 22, 2005 the PW 1 lodged a complaint in this regard to the Officer -in -Charge, Lalgola Police Station, Murshidabad. A formal FIR bearing No. 36/05 dated April 22, 2005, P.S. -Lalgola, District -Murshidabad, was lodged on the basis of the above written complaint on the above date at 00.05 hours to initiate a case against the appellant for commission of offence punishable under Section 302 of I.P.C. A surathal report in respect of the dead body of the victim was prepared by Amar Kumar Mazumdar, Sub Inspector of Police, Lalgola Police Station. On April 22, 2005, Md. Nabiul Islam, Sub Inspector of Police, Lalgola Police Station (at the material point of time) (PW 19) was entrusted with the investigation in connection with the above Lalgola P.S. case. A rough sketch map with index was prepared and the wearing apparels of the deceased as also sample of blood from the above dead body were collected. Ananda Mondal, Constable, Lalgola Police Station, (PW 15) and A.S.I. Md. Rahmatullah (PW 16) were the witnesses of the above seizure list. Dr. Jugal Kishore Panja, Medical Officer, Sub Divisional Hospital, Lalbagh (PW 18) conducted the post mortem of the dead body of victim on April 22, 2005. According to the above post mortem report, the victim sustained multiple injuries on his body. According to the above post mortem report, the cause of death of the above victim was haemorrhage and shock as a result of multiple injuries to the vital organs of the victim and it was homicidal in nature. In cross -examination, the PW 18 deposed that the victim sustained the above injuries due to assault by weapon. Police upon investigation submitted charge sheet against the appellant for commission of offence punishable under Section 302 of I.P.C. On September 27, 2005 charge was framed against the appellant for committing offence punishable under Section 302 of I.P.C. After taking into consideration the documentary and oral evidences of nineteen prosecution witnesses and two defence witnesses as also considering the statement of the accused recorded under Section 313 of Cr.P.C. the impugned judgment was delivered. It is submitted by Mr. Partha Sarathi Bhattachargee, learned Advocate appearing on behalf of the appellant that from the evidences (both documentary and oral), the fact of commencement of a meeting on April 21, 2005 at Flood Centre under reference, altercation in between the victim and the appellant during the progress of the above meeting, felling down of the victim and the appellant on floor, scuffling of the victim and the appellant and sustaining injuries by the victim using sharp cutting weapon, the death of the victim were almost admitted fact. But commission of the above offence by the appellant was not proved beyond any reasonable doubt for the following reasons: - (i) The discrepancies of the evidence of PW 1 to 5 with those of PW 9 and PW 10 were vital, affecting the credibility of the evidence of all the witnesses. (ii) There was no direct evidence against the appellant to assault the victim with sharp cutting weapon. The specific description of the weapon of offence was not available from the evidence on record. The weapon of offence was not recovered. (iii) Though the controlled earth of the place of occurrence was sent to the Forensic Science Laboratory for chemical examination, the report of such examination was not produced before the learned Court below. According to the evidence of the Investigating Officer (PW 19), the above report was not collected. (iv) No evidence was available on record in this case with regard to intention of the appellant of causing death or such intention of causing such bodily injury.
(3.) ON the other hand, it is submitted by Mr. Pawan Kumar Gupta, learned Junior Government Advocate, that the commission of offence under reference by the appellant was proved on the basis of the evidences adduced by five eyewitness (PW 1, 2, 4, 5 and 8) corroborating the prosecution case on the basis of the surathal report, charge framed against the appellant, post mortem report as also the evidence adduced by the appellant as DW 1 and that of DW 2 (the radiologist in Behrampur District Hospital), amongst others.;