Joymalya Bagchi, J. - (1.) The appeal is directed against the judgment and order dated 29.6.1994 and 30.6.1994 passed by learned Additional Sessions Judge, 1st Fast Court, Alipore, South 24 Parganas, in Sessions Trial No.3(6) of 1993 corresponding to Sessions Case No.79(4) of 1993 convicting the appellants herein for the commission of offence punishable under sections 302/149/148/448/149 of the Indian Penal Code. and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.300/- in default to further rigorous imprisonment for one year more for the offence under sections 302/149 of Indian Penal Code, rigorous imprisonment for two years for the offence punishable under section 148 of Indian Penal Code and rigorous imprisonment for one year for the offence under sections 448/149 of Indian Penal Code, all the sentences to run concurrently.
(2.) Prosecution case, as alleged, against the appellants is to the effect that on 2.4.1987 at about 12.00-12.30 p.m. the victim Joya Sardar along with his wife Sumitra @ Chali Sardar (P.W.1) was in their house. His brother Gagan (P.W.2) and his wife were also in their house adjoining that of Joya Sardar. At that time the appellant along with others being armed with bombs and other deadly weapons proceeded towards the house of Gagan. Some of them called Gagan from his house and enquired why he was not attending the meeting. Gagan told them that the meeting did not relate to his affairs whereupon Narbindo Sardar (Accused No.13) threw a bomb at Gagan. Gagan turned aside and the bomb hit the wall and exploded. Gagan suffered burn injuries on his hands and chest. Gagan ran away along the narrow passage between his house and that of elder brother, Adhir Sardar. On his way he met a green coconut seller and requested him to take him to the police station where he lodged a general diary. On hearing the sound of explosion, Joya Sardar, the victim, came to the spot and proceeded through the passage between his house and that of his brother, Gagan. At that time Joya asked the appellants, namely, Pora Bablu, Nidhiram and others about the incident. Sumitra (P.W.1), wife of Joya was also standing in the courtyard at that time. The appellant Pora Bablu abused Joya and threw a bomb at him. As a result he sustained bomb injuries on his right leg. Sumitra came to the rescue of her husband. Her husband told her that Pora Bablu had hurled bomb at him. Then Joya Sardar started crawling towards his house and the appellant Nidhiram Sardar attempted to fire at him from a pipegun. Sumitra asked appellant Nidhiram not to do so. Thereupon, Nidhiram held her by her wearing apparel and hit her with the pipe gun. At that moment, the appellant Tarak Sardar was found standing with a bomb in front of Joya's room. The appellant Tarak hurled bomb at Joya and also abused him. Sumitra asked Tarak not to do so. Sumitra took Joya into their room and closed the door and windows of the room. Then the miscreant appellant's hurled bombs at the door and windows of their house and left. After some time they returned and tried to break the door and windows of the house of Joya. Then they again left the spot saying that they were going to the house of Basu. After 8-10 minutes later, the miscreants came back and broke the door of the verandah of Joya's house with an axe. Then the appellants hit the inner door with the axe and entered the room of Joya. Joya and Sumitra took refuge under a cot in order to conceal themselves. The appellant Lamba Bablu @ Bablu Pramanik struck Joya with an axe. The appellant Kalua hit Joya with a sword on his cheek. The appellants dragged Sumitra from beneath the cot. When Sumitra embraced her husband the appellants abused her. Pora Bablu and Nidhiram tried to take her away. The appellant, Tarak fired at Joya with his pipe gun. Thereafter, the miscreants left the place and Joya died at the spot. Police reached the place of occurrence and recorded the statement of Sumitra Sardar which was treated as First Information Report being Tiljala P.S. case No.1 dated 2.4.1987 under sections 148/149/448/427/326/307/302 of Indian Penal Code, under sections 25/27 of Arms Act and under section 9B(II) of Indian Explosive Act against the appellants and other accused persons. Police sent the dead body of Joya Sardar for postmortem and seized various articles from the place of occurrence. Upon completion of investigation charge-sheet was submitted against the appellants and other accused persons. The case being a sessions triable case which was committed to the Court of Sessions and transferred to the Additional Sessions Judge, 1st Court, Alipore, South 24 Parganas, for trial and disposal. Charges were framed under sections 148, 302/149, 307/149, 448/149 and 427/149 of Indian Penal Code. against the appellants and other accused persons. They pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined nineteen witnesses and exhibited a number of documents. In conclusion of trial, the trial Court convicted and sentenced the appellants, as aforesaid. However, the other accused persons were acquitted of all the charges levelled against them. The appellants were also acquitted of the charges under sections 307/149 and 427/149 of Indian Penal Code.
(3.) Mr. Basu, learned senior counsel appearing for the appellants submitted that the prosecution case is founded on the evidence of the sole eyewitness, P.W.1. Evidence of P.W.2 suffers from various infirmities and contradictions. The manner and course of the incident as narrated by P.W.1 in the First Information Report is at variance with her deposition in Court. Allegation of firing at the victim is not supported by medical evidence. P.W.1 was present at the time of inquest but the names of the assailants did not transpire in the inquest report. Presence of P.W.1 is highly unlikely as she did not suffer any injury on her person. Hence, P.W.1 is a wholly unreliable witness. Injuries on the victim as noted in the inquest report are at variance with the findings in the post mortem report and, therefore, prosecution case cannot be said to have been proved beyond reasonable doubt. Injuries on P.W.1 have not been proved affecting the genesis of the prosecution case. Evidence of P.W.s 8 and 9, the post-occurrence witnesses, also suffer from contradictions and/or embellishments when compared with their earlier statements to the police. There are defects in the investigation and seized articles have not been produced in the course of trial. It is also submitted that the First Information Report in the instant case was preceded by an earlier information and, therefore, is hit by section 162 Cr.P.C. He also submitted that the trial judge had put jumbled up questions during examination of the appellants under Section 313 of CrPC which had prejudiced them and resulted in a mistrial. He relied on various authorities in support of his contentions.;