- (1.) THIS appeal is directed against a judgment and order dated 15th February 2002 passed by Shri Indrajit chatterjee, learned Additional Sessions Judge, Fast Track Court, diamond Harbour in Sessions Trial No. 9 (10) of 2001 arising out of sessions Case No. 16 (6) of 2001 convicting the appellant under sections 302 and 201 of the Indian Penal Code and sentencing him to suffer imprisonment for life as also to pay a fine of Rs. 5000/-, in default to suffer simple imprisonment for a period of one year for the offence punishable under section 302 of the Indian Penal Code and to suffer rigorous imprisonment for a period of three years for the offence punishable under section 201 of the Indian Penal Code as also to pay a fine of Rs. 2000/-, in default to suffer simple imprisonment for a further period of six months. Both the substantive sentences were directed to run concurrently. The appellant was also charged under section 364 but as against that charge he has been acquitted.
(2.) THE case of the prosecution briefly stated is as follows:-Rahaman, son of Rabial Seikh, aged about 25 years, was a tailor. He used to work at Metiabruz. On 25th September 1998 at about 10. 00 to 10. 30 P. M. he was returning home accompanied by Mustafa (P. W. 6), jahangir (P. W. 3), Asmat (P. W. 4) and Sahanabi (P. W. 5 ). All of them were coming by the same bus. They alighted from the bus at Kalitala bus stoppage. All of them belonged to the same village and were going together. Near the house of Kangal Sardar the accused Sambhu called the victim Rahaman aside on the pretext of some urgent necessity. Rahaman told his companions to go ahead and he would come later. Thereafter, Rahaman did not come back. After a thorough search on 28th September 1998 a complaint was lodged by the P. W. 1 Rabial, father of the victim Rahaman, which was received at 14. 35 hrs. Falta Police station case No. 195 dated 28th September 1998 under section 364 of the Indian Penal Code was started. The accused Sambhu absconded. His house was found under lock and key. On 30th September 1998 he was arrested from village Rania. Pursuant to his statement made to the police, which has been marked ext. 8, a headless, armless, legless dead body of the deceased Rahaman was recovered from a marshy land. The accused Sambhu was charged under sections 302,364 and 201 and has been acquitted of the charge under section 364 of the Indian Penal Code as already indicated. The learned Trial Judge came to the conclusion that the prosecution had been able to prove the following circumstances:- "i) That Rahaman was returning through the village road on 25. 9. 98 with P. Ws. .-3 to P. W. 7 at about 10. 00 to 10. 30 P. M. II) That some persons were waiting on the village road in front of the house of Kangal and Sambhu was one of them. III) That Sambhu called Rahaman and Rahaman went there and from there asked his friends to go home and Rahaman stayed there. IV) Rahaman did not return and was not seen by any person. V) PW-1, 2, Asmat, Jahangir, etc. deposed as to the missing of rahaman and they told what they saw on the previous night and then PW-1 and other witnesses went to Sambhu's house and shambhu was not there and his house was under lock and key. VI) Search for Rahaman Sk. continued but he was not found. VII) FIR was lodged on 28. 9. 98 and Shambhu was arrested in the morning of 30. 9. 98 and as per his statement only the trunk of rahaman's body was recovered from a ditch at village Kuchagadi which was identified by PW-1 by the belt which Rahaman used to wear since last 6 months. "
(3.) BEFORE we consider the submissions advanced by Mr. Dastoor, learned Advocate appearing for the appellant, we would discuss the evidence on record.;