Joymalya Bagchi, J. - (1.) Appeal is directed against the judgment and order dated 27.02.2006 and 28.02.2006 passed by the learned Additional Sessions Judge, 3rd Court, Barasat, North 24 Paraganas, in Sessions Trial 1(9)1995 arising out of Sessions Case 6(2)1994 convicting the appellant no. 1 for the offence punishable under Section 302/109 of the Indian Penal Code and appellant no. 2 for the offence under Sections 302/120B/201/34 of the Indian Penal Code and sentencing appellant no. 1 to suffer imprisonment for life and to pay a fine of Rs.1,000/- in default further simple imprisonment for one month for the offence under Sections 302/34 of the Indian Penal Code and to suffer rigorous imprisonment for four year and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for a month for the offence punishable under Section 201 of the Indian Penal Code and sentencing appellant no. 2 to suffer imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer further simple imprisonment for a month for the offence punishable under Section 302 of the Indian Penal Code read with Section 109 of the Indian Penal Code. No separate sentence was imposed on appellant no. 2 for the offence under Section 120B of the Indian Penal Code with a further direction that all the sentences shall run concurrently.
(2.) Prosecution case as alleged against the appellants and one Biswanath Basfore, since deceased, is to the effect that the deceased Nandlal Dogra was the husband of appellant no. 1, Kamala and father of the appellant no. 2, Shyamal. There was matrimonial dispute between Nandlal and Kamala. He used to reside separately and occasionally visited the appellants. On 23.08.1993 at 5.30 p.m., he had come to the residence of the appellants after purchasing vegetables and other items. Thereafter he left the residence and on the following morning around 5.30 a.m. his dead body was found in a nearby tank with a towel (gamcha) tied around his neck. P.W. 1, Bimal Dogra, elder son of the deceased, lodged written complaint with regard to the murder of his father Nandlal resulting in registration of Noapara Police Station Case No. 218 dated 24.08.1993 under Sections 302/34 of the Indian Penal Code against the unknown accused persons. In the course of investigation, the appellants and other inmates of the family including P.W. 1, Bimal Dogra and P.W. 24, Mamata Chowdhury (Dogra), daughter of the deceased, were arrested. On the leading statement of the appellant no. 2 and Biswanath Basfore, 'hawai chappal' of the latter was recovered from the residence of P.W. 21, Debabrata Chakraborty. An empty jerrycan was also recovered from the residence of the appellant no. 2, Shyamal. Subsequently, the appellants were produced before the Judicial Magistrate (PW23) and they made confessions which, however, were subsequently retracted. In conclusion of investigation, charge-sheet was filed against the appellants and Biswanath Basfore and the case was committed to the court of sessions and transferred to the Court of Additional Sessions Judge, 3rd Court, Barasat, North 24-Parganas. Charges were framed under Sections 302/120B/201/34 of the Indian Penal Code against the appellants and Biswanath Basfore. The accused persons pleaded not guilty and claimed to be tried. It was their specific defence that they were subjected to torture in police custody and compelled to make judicial confessions which they had retracted. In the course of trial Biswanath Basfore expired and the case was abated against him. In the course of trial prosecution examined 27 witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication. In conclusion of trial, the learned trial judge by judgment and order dated 27.02.2006 and 28.02.2006 convicted and sentenced the appellants, as aforesaid.
(3.) During the pendency of the appeal an issue of juvenility was raised on behalf of the appellant no. 2, Shyamal Dogra. Relying on a transfer certificate issued by Ananda Mohan Bidyapith it was argued that appellant no. 2 was born on 10th November, 1975 and hence was aged 17 years 3 months at the time of incident. On this score, prayer was made for suspension of sentence of appellant no. 2. A co-ordinate Bench of this Court remanded the matter before the trial court for determination of age of appellant no. 2. In the course of enquiry ossification test was conducted and as per radiological report it was opined that appellant no. 2 was aged above 23 years but less than 33 years at the time of occurrence. Accordingly, the plea of juvenility was turned down by this Court vide order dated 08.12.2011. Matter was carried to the Hon'ble Apex Court in Special leave to appeal (criminal) 6440/6441 - 2012 wherein by order dated 22.03.2013 the Hon'ble Supreme Court requested this Court to examine the genuineness of a copy of the admission register of Session 1982 relied upon by the State wherein date of birth of appellant no 2 was stated 22.12.1975. Pursuant to such direction, this Court held enquiry into the matter. Original admission register was produced and the teacher-in-charge was examined. By order dated 04.12.2015 a co-ordinate Bench of this Court held that the admission register of the concerned school was not maintained properly. It observed as follows:- "So far as the particulars of the appellant no. 2 is concerned, these are available from pages 31 and 32, if viewed in a composite manner. In page 31, the name of the appellant Shyamal Dogra appears against the last serial of that page which is 14th in the entry list, and in the column specified for recording the father's name of a student, it is written "Nandala Dogra". There is no description of occupation and address so far as father of the appellant no. 2 is concerned. The column meant for description of the individuals with whom the pupil lives has been left blank. In the column carrying the heading 'Date of Birth' according to the English calendar, it is recorded 10th November, 1975. Other columns, so far as appellant no. 2 is concerned, have been left blank. In annexure R1 to the counter affidavit of the State of West Bengal, we find the date of birth specified in respect of Shyamal Dogra is 22nd December, 1975. This date does not match with the entry against the column for recordal of date of birth in the admission register produced before us.";