Jay Sengupta, J. - (1.) This appeal is directed against a judgment and order of conviction dated 11th October, 2004 and sentence dated 12th October 2004 passed by the Learned Additional Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Kolkata in Sessions Trial No. 3 (May), 2003: Sessions Case No. 118/2002 thereby convicting the appellant for committing an offence under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5000/-, in default to suffer rigorous imprisonment for three months.
(2.) On 3rd June, 2000 at about 19:55 hours, PW 3 lodged a First Information Report under Sections 302 and 394 of the Penal Code against unknown accused alleging looting of articles from his brother's flat and murder of his brother's wife Fatema Md. Hossein Burtanwalla. The de facto complainant stated that he along with his family members resided in a flat on the second floor of the house at premises no. 24, Pollock Street, Kolkata700001. His elder brothers Md. Hossein and Moiz resided with their respective family members in separate flats on the third floor of the house while his youngest brother Fazlu Hossein Burtanwala resided with his family on the top floor of the house. There were tenants on the ground floor. All the four brothers dealt in crockery business in Kolkata. The victim's married daughter Tahera (PW 20) resided in Maharashtra. The couple had a maid-servant Hafiza Bibi (PW 27) working in their flats for the last fifteen years. The victim could not walk properly due to a physical problem. Usually she used to keep the entrance door of the flat open during day time. PW 17's son Parvez (PW 14) used to work in the shop of the victim's husband. The said Parvez had told the victim's husband that he would not come to work on 3rd June, 2000 as he was to visit his in-laws' house outside Kolkata. Every day all the brothers and their sons used to leave their flats for their shops by 9:00 hours. So was the case on the fateful day. Being a Saturday the de facto complainant and his son, as usual, returned to their flat at about 18:00 hours. At about 19:00 house the daughter-in-law (PW 4) of Muiz Bhai, another brother, came to his flat and reported that she heard sound of water in the bathroom of the victim and feared that if it continued to fall, then on the next morning there would be a scarcity of water. On hearing this, the de facto complainant went to the third floor and saw the entrance door of the victim's flat open. Upon not getting any response after calling, he entered the flat and saw articles lying scattered on the cot of the bedroom as well as on the floor. Almirahs were found ransacked. When he reached the drawing room he saw the victim lying with severe bleeding injuries on her head on the floor and the adjoining bathroom. Her brain matters were found lying scattered. A big iron chopper and a knife both stained with blood were lying in the bathroom. The victim appeared dead as she did not respond to calls. Another blood stained knife was found on the floor of the bedroom. Empty jewellery box, vanity bag, etc. were lying scattered. He immediately came down and raised alarm. He also informed the matter to police through the Additional Commissioner of Police (I) over phone. In the meantime the victim's husband came back. Police too came and started investigation.
(3.) Mr. P.P. Acharya, the Learned Executive Magistrate, held inquest over the dead body of the victim on 4th June 2000 at 15:30 hours at the police morgue. As per his report (Ext. 25) he found several injuries on the dead body, which are given as under:- (i) Deep cut injury (fracture) at the left side of head, face, cheek, right side of forehead, chin, lowerlip, right ear, nose, forehead. (ii) Right side cheek left side chin, 13 abrasion marks at left side shoulder left hand (5), one cut mark at left wrist. (iii) 4 cut marks at fingers of left hand, abrasion mark at left thumb, (illegible) abrasion at left palm, left side hip joint. (iv) (8) left side back of the chest, left abdomen, right elbow, cut mark at right wrist, abrasion at left upper arm, cut mark at right fingers, right shoulder abrasion of the back, right side abdomen, right hip joint. PW 18, the post mortem doctor conducted the examination over the dead body on 4th June 2000 at 15:45 hours. He found about 42 injuries on the dead body. According to him death was due to effects of the injuries, ante mortem and homicidal in nature. After completion of investigation, a chargesheet was submitted. Charge was framed against the appellant for commission of an offence under Section 302 of the Penal Code. Since the appellant pleaded not guilty, trial commenced. The prosecution examined as many as 28 witnesses to bring home the charge. The defence case was mainly a denial of the prosecution case. In his examination under Section 313 of the Code, the appellant tried to explain a few circumstances appearing against him.;