DIBYENDU BHUSAN DUTTA, J. - (1.) THIS appeal is directed against the judgment of conviction and sentence passed in Sessions Trial Case No. 23 of 1985 in the Court of Additional Sessions Judge, Asansol.
(2.) THE prosecution story as narrated in the FIR runs as follows. On the evening of 24.3.79, there was a quarrel between PW 4 (Sakuntala Devi) wife of one Ramji Shaw (since deceased) on one side and two sisters of the appellant Kapil Deo namely Bachhi and Saria over an earlier incident of quarrel between PW 4's daughter and Kapil Deo's sister's daughter. While the quarrel between PW 4 and Kapil's sisters was going on, PW 1 Ram Ikbal intervened and asked them to stop quarrelling. PW 1's brother Rajballav also joined him in forbidding them to quarrel. As a sequel to this incident, on the night of 24.3.79, the appellant Kapil along with his sister's husband namely the appellant Sitaram threatened both PW 1 and his brother Rajballav with dire consequences. On the following morning i.e. on 25.3.79, the quarrel between PW 4 and Kapil's sisters resumed and during the quarrel the two sisters of Kapil called Kapil Deo whereupon Kapil came in front of Rajballav's house, called him (Rajballav) and took him out at about 9.30 A.M. towards the khatal of one Mongal Rao on the north about 50 -60 yards away. PW 1, PW 4, wife of Rajballav namely Lalti Devi, PW 2 Tararani Dey and her husband Netai Dey (PW 3) followed them. As soon as Rajballav was taken by Kapil Deo to the front of Mangal Ray's khatal, the appellant Sitaram and his son Mehendra, the other appellant, who were waiting there, caught hold of Rajballav and as per instruction of the appellant Sitaram, the appellant Kapil Deo whipped out a dagger and stabbed Rajballav from behind. Alarm was raised by PW 1 and others who were following Rajballav while he was being taken by Kapil Deo and the appellants took to their heels. This occurrence was also witnessed by PW 5 Musafir Ray and PW 6 Raghubir who were present in front of Mangal Ray's khatal. Rajballav fell on the ground with deep injury below the left armpit which was bleeding profusely and within a short while Rajballav succumbed to his injuries.
(3.) IT is the further case of the prosecution that one Gopal Ray gave the information of the alleged murder at the local Talpukuria T.O.P. This information was received by PW 8, the then Head Constable in charge of that out post, and was passed on to the local P.S. over telephone. The information which was passed on by PW 8 was received by PW 7, the ASI of police who was on duty at Asansol P.S. The permanent O.C. of Asansol P.S. was then away from the P.S. and PW 7 communicated the message to the O.C. over R.T. He also communicated the information to S.I., R. Dey (PW 13) who was in charge of the P.S. due to the temporary absence of the O.C. PW 13 immediately rushed to the place of occurrence and found the dead body of Rajballav. At the place of occurrence, PW 1 gave him the information disclosing in details as to how and by whom the murder was committed. PW 1's statement was reduced into writing (Ext.2) and forwarded by PW 13 to the P.S. PW 7 received the written complaint (Ext. 2) under his endorsement (Ext.2/1), drew up the formal FIR (Ext.3/2) and started Asansol P.S. Case No.38 dated 25.3.79 under Section 302/34 IPC against the appellants. On getting the information, the O.C. arrived at the place of occurrence and asked PW 13 to investigate. PW 13 held inquest over the dead body of Rajballav at the place of occurrence and sent the body to hospital for post mortem examination. He found blood in front of P.O. and seized blood stained earth and control earth under the seizure list (Ext.1). While sending the dead body for post -mortem examination, he requested the autopsy surgeon to preserve the vest, underwear and some blood of the deceased. On 29.2.79, he sent to Forensic Science Laboratory, Calcutta the seized blood stained earth and control earth and also the blood -stained vest and preserved blood of the deceased. He received the report of the FSL on 17.5.79. He remained in charge of investigation of the case till 18.7.79. Subsequently, after completion of the investigation, police sent up all the three appellants for their trial on a charge under Section 302 read with Section 34 of the IPC. During the trial, prosecution examined PW 14 witnesses. PW 1 is the brother of the victim Rajballav. He was living with Rajballav and Rajballav's wife Lalti in the same room of a rented house. He is said to have intervened during the quarrel as a sequel to which the alleged murder was committed. It was he who lodged the FIR and claims to be an eye - witness to the occurrence. He followed Rajballav while on being called by Kapil Deo he was being taken from his house towards Mongal Ray's Khatal. PWs 2 and 3 are the couple who were living in the same house where PW 1 and Rajballav were living at that point of time. Both of them were declared hostile by the prosecution. According to PW 2, he was standing in front of the house. She saw quarrel between the deceased Rajballav and others on the road about 20 -25 cubits away. She also saw everyone running away and thereafter found Rajballav lying on the ground. She heard everybody shouting that Rajballav was murdered and that the assailants had escaped. PW 3 wanted to say that he was at Murgasolemore, about 10 minutes' walk from his house. At about 10 -30 A.M. he heard some sound of) halla, came running to the spot and found Rajballav lying dead on the ground about 30 -35 cubits away from his house. PW 4 was one of the participants of the quarrel as a sequel to which the alleged murder was committed. She happened to be a next door neighbour of Rajballav. She claims to be an eye -witness to the occurrence. She is one of the persons who along with PW 1 followed Rajballav while he was being taken away from his house by Kapil Deo and witnessed what had followed. PW 5 is the owner of a khatal in the vicinity of which the occurrence took place. He claims to be another eye -witness to the occurrence. According to him, he was standing in front of his khatal when he saw Sitaram and Mahendra at some distance from his khatal. He claims to have also seen the arrival of Rajballav and Kapil Deo and the assault that followed. PWs 6, 9 and 10 were simply tendered for cross -examination without being examined by the prosecution. PW 7 is the ASI of Police who received the FIR which was sent by PW 13 from the P.O. and started the case. PW 8 is the Head Constable of Talpukuria T.O.P. It was he who received the information to the effect that there was a murder at Murgasole Goalpara and passed on that information to local P.S. PW 11 is a clerk of Asansol Sub Divisional Hospital who produced the post -mortem report of the deceased in response to summons issued by the Court. PW 12 is the second I.O. who took charge of the investigation on 29.4.81 and submitted charge -sheet. PW 13 is the principal I.O. of this case who rushed to the place of occurrence on receipt of the telephonic message of PW 8 about the alleged murder. PW 14 is the doctor who held the post -mortem examination over the dead body of Rajballav on the date of occurrence at about 4.30 P.M. and found several injuries on the body and opined that the death was due to the injuries which were ante mortem and homicidal in nature. ;