DEBASISH KAR GUPTA ,J. - (1.) This appeal is arising out of the order of conviction of the appellant for commission of offence punishable under Sections 302/307 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentence to suffer imprisonment for life for commission of offence punishable under Section 302 of the I.P.C. and rigorous imprisonment for a period of 4 years and a fine of Rs.4000/ - in default to suffer rigorous imprisonment for a further period of six months for commission of offence punishable under Section 307 of the I.P.C. passed by the learned Additional Sessions Judge, Fast Track Court -IV, Alipore, South 24 -Parganas in S.T. No.3 (2) 04 arising out of S.C. No.38 (6) 02. There was direction for running the aforesaid sentences concurrently and for setting off of detention of the appellant in jail custody during investigation and trial from substantive imprisonment under Section 428 of the Cr.P.C. Another accused person namely, Mannan Molla was acquitted giving him benefit of doubt.
(2.) The backdrop of the prosecution case in a nutshell is as under: - On December 11, 2001 one Entaj Ali Molla (PW 1) and his family members namely, Nuri Bibi (his deceased wife), Nur Mohammad Molla (his deceased second son), Fuli Bibi (wife of the aforesaid deceased second son), Jahir Ali Molla (his younger son) and Moksuda Khatun (his daughter) were sleeping in different places of their residential house situated at village -Kankura, Masat, P.O. -Masat, Police Station -Diamond Harbour, District -South 24 -Parganas. The third son of the aforesaid PW 1 namely, Jahir Ali Molla (PW 2) was sleeping in his bedroom with his wife. At 01.00 hours he found after awakening that 3/4 persons got upon his body and one of them was trying to slash knife on his throat. He managed to snatch that knife and moved under the cot. The accused persons started firing aiming at him. He further found that out the aforesaid miscreants Raju Sk (since deceased) caught hold of his second brother Nur Mohammad Molla (since deceased) and brought him inside the room. The appellant opened fire from his gun aiming at his aforesaid second elder brother. He fell down. Accused Nur Mohammad Sk. cut the neck of his aforesaid second elder brother. Nuri Bibi (the deceased wife of PW 1) was sleeping at the verandah of the above house with her daughter Moksuda Khatun. Accused Raju Sk. (since deceased) shoot on the side of her forehead. Nuri Bibi fell down on the floor of the varandah near the door of PW 2. The accused Nur Mohammad Sk. cut the throat of the aforesaid Nuri Bibi (since deceased).
(3.) The PW 2 ran out of his room and threw the knife on the courtyard. Some of the accused persons chased him. He jumped in a pond and the accused persons started shooting towards him. He sustained bullet injury on the right side of lower abdomen. After crossing the pond he started running towards the house of one Sajahan Sk, their next door neighbor. One of the accused opened fire aiming at him. The PW 2 was removed to Diamond Harbour Hospital with injuries sustained on his body. A statement of PW 2 was recorded by Sri P.K. Mallik, Executive Magistrate, Diamond Harbour (PW 14) at the above hospital on the same day in presence of PW 15 and PW 19.;