JOYMALYA BAGCHI,J. - (1.) The appeal is directed against the judgment and order dated 22/23.11.2013 passed by the learned Additional District and Sessions Judge, FTC- II, Howrah in Sessions Trial No. 38 of 2012 convicting the appellants for commission of offence punishable under Sections 307 read with section 34 of the Indian Penal Code and sentencing them to suffer life imprisonment and to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for six months more.
(2.) The prosecution case, as alleged against the appellants is to the effect that on 11.11.2000 between 7/7.30 p.m appellant nos. 1 and 2 aided and abetted by one Sanjit attacked the victim in causing bleeding injuries on the head and other parts of the body with a sword in an attempt to kill him. At that time, Mustaquin Dewan (P.W 1) and his brother Surabuddin (P.W 2) were returning from the shop of Kripasindhu Roy after purchasing battery for torchlight. When they reached the 'goomty' of Noornasha Bibi (P.W 5) at 'Tinmatha more', appellant no. 2 (Mintu Mullick) caught hold of the collar of the victim and abused him. Thereupon, appellant no.1 Matam Mullick and Sanjit assaulted them with belt. He shouted for help. At that time Sanjit brought out a sword. Appellant no. 1 Matam Mullick asked Sanjit to hand over the sword to him. Thereafter he assaulted Mustaquin Dewan (P.W 1) with that sword on the left side of chest. The latter resisted Matam with his torch. Matam again attempted to attack Mustaquin but was thwarted in similar manner. Finally, Matam assaulted Mustaquin causing injury above the left eye and other parts of the body. Mustaquin fell down on the ground. He was shifted to Haji S.T Mullick BPHC where he was treated by Dr. Jayanta Mitra, PW 11. Thereafter the victim was shifted to Howrah district hospital where he was admitted from 11.11.2000 to 4.12.2000 and thereafter from 10.12.2000 to 26.12.2000. As police did not take steps, Mustaquin (P.W 1) took out an application under section 156(3) Cr.P.C. and pursuant to direction of magistrate FIR was registered being Sankrail P.S case no. 111 dated 2.7.2001 against the appellants and one Sanjit Mullick. In conclusion of investigation charge-sheet was submitted. The case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, FTC-II, Howrah for trial and disposal. Charges were framed against the appellants under Sections 341/325/323 IPC. Subsequently, supplementary charge sheet was filed and charges were re-framed under section 307/34 of the Indian Penal Code. The accuseds pleaded not guilty and claimed to be tried. In the course of trial prosecution examined 15 witnesses and exhibited a number of documents. Defence of the accuseds was one of innocence and false implication. In conclusion of trial, learned trial judge by judgement and order dated 22/23.11.2017 convicted and sentenced the appellants, as aforesaid. However, Sanjit Mullick was acquitted of the charges levelled against him.
(3.) Mr. Datta, learned Counsel appearing for the appellants argues that the genesis of the prosecution case has not been established beyond reasonable doubt. Torch light which was used by P.W 1 to thwart attack upon him was not seized. Weapon of offence i.e. sword was also not seized. Complicity of appellant no. 2 is not evident from the evidence of P.W 1 in court. Hence, the appellants are entitled to an order of acquittal.;