IMPORTANT POINT
After conceding certain aspects, it is not open to a party to turn around.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court which by the impugned judgment upheld the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) while setting aside the conviction under Section 398 IPC as done by learned Additional Sessions Judge, Alipore, in connection with Sessions trial No.6 (1) of 1997.

2. Prosecution case in a nutshell is as follows:

On 1st August, 1996, at about 11.40 in the night the present appellant along with others came in a white Ambassador car having fake number plate in front of the grocery shop under the name and style “Prabhat Stores” situated at 7/1, Bampass Road, Calcutta-29. The persons who came in the Ambassador car were armed with weapons like pistol, nepala etc. and they entered into the grocery shop and demanded key of the cash box from the proprietor of the shop namely Gulab Mehata (hereinafter referred to as the ‘deceased’). At that relevant time Gulab Mehata alongwith his sons Mukesh Mehata was about to take their dinner and the FIR maker Shyam Mehata just came inside the shop with drinking water. Since Gulab Mehata refused to hand over the key of the cash box the present appellant shot at the deceased from the front side at his chest and on receiving the injury, he fell down and thereafter the appellant and other accused persons inflicted cut injuries on the person of the deceased. The miscreants also assaulted Mukesh Mehata with the butt of the revolver. Soon after the occurrence, hearing the alarm of the FIR maker, Shyam Mehata and his brother Mukesh Mehata, the neighbours of the locality rushed in the shop and Gulab Mehata and Mukesh Mehata were taken to the nearby hospital where subsequently Gulab Mehata succumbed to his injuries. One of the neighbours informed Tollygunge Police Station immediately about the occurrence and Tollygunge Police Station officials soon thereafter arrived at the spot and started investigation. On completion of the investigation, police submitted the charge sheet against the present appellant along with others under Section 302 read with Section 34, Section 307 read with Section 34 and Section 398 read with Section 34 IPC. Since the accused persons pleaded innocence trial was held.

Before the High Court the learned counsel for the appellant accepted that there was no challenge to the fact relating to the occurrence. It was also conceded that from the evidence of the FIR maker and also from the evidence of the other witnesses examined during the trial it was established that the present appellant was physically present inside the shop room. It was also conceded that there was little scope to deny the prosecution charge that accused had assaulted the deceased Gulab Mehata with the help of fire arm. It was, however, submitted that the circumstances under which firing has been done were not very clear. Brother of the FIR maker who was also injured at the time of occurrence did not identify the appellant as the person who shot at his father and, therefore, there was scope to raise a doubt as to whether the appellant with the intention of causing death to Gulab Mahata shot at him. In other words, it was submitted that a case under Section 302 is not made out. The High court did not accept this plea, though it accepted the stand that there was no scope for the conviction under Section 398 IPC. The stand taken before the High Court was re-iterated by learned counsel for the appellant. In support of the appeal, it was submitted that the High Court has erroneously recorded certain concessions which in fact were not made. It is submitted that in any event, no offence under Section 302 IPC is made out. It is also submitted that there was no identification of the appellant as claimed.

3. Learned counsel for the State on the other hand submitted that the factual scenario clearly established the commission of offence under S