The court held that the testimonies of the eyewitnesses were unreliable and could not be relied upon to establish the guilt of the accused. The court also held that the examination of the accused under section 313 of the Code of Criminal Procedure was improper as there was no substantive evidence to support the incriminating circumstances put to the accused.

BHATTACHARYYA, J.

( 1 ) THIS Appeal is directed against the judgment and order dated 28. 4. 1989 of the 7th Court of Additional District and Session Judge, Alipur in Session Trial Case No. 3 (3) of 1989. The learned trial Court convicted Sambhunath Adhikari and Biswanath Hui alias Wheel Hishu under section 302. Indian Penal Code read the section 34 and sentenced them to imprisonment for life and to pay a fine of Rs. 1,000\- (Rupees one thousand) each in default to suffer rigorous imprisonment for further period of 6 (six) months.

( 2 ) THE facts have been detailed in the judgment of the trial Court but for appreciation of the facts in the Appeal, we give a brief resume of the facto.

( 3 ) THE fateful incident took place on 26-11985 at or about 2. 30 a. m. in the mid-night on the Saraswati Puja eve. It has been highlighted in the evidence that Sekhar Das (P. W. 17), Tarak Roy (P. W. 20) besides the deceased, after purchase of the Idol proposed to visit the prostitutes of Tablagali at Kalighat Road. To fulfil their desired objective, they went to Tablagali during that night. There was a wrangle between the prostitutes in one hand and the deceased on the other over the rates. In the midst of such a wrangle over the issue, three armed persons broke out in that particular area. Two of them caught-hold of Gajanan Chakraborty and Badal Das and Sambhu dealt the dagger blows on Gajanan and Badal. However, they tried to flee in vain but their other comrades Sakhar and Tarak managed to flee from the situation after being chased.

( 4 ) THEREAFTER, Ratanlal Mukherjee (P. W. 21) entrusted the patrol duty along with other constables and officer under him found them lying on the pavement seriously injured. In the meantime, the relations of the deceased persons appeared thereon information and identified the injured.

( 5 ) RATANLAL Mukherjee (P. W. 21) sent them to S. S. K. M. Hospital where they were declared brought dead by the Doctor on examination. In due course the autopsies were held on the dead bodies after the inquest was held by Ratanlal (P. W. 21 ). The police started a suo motu F. I. R. (Ext. 10) against unnamed assailants and started a case which was registered and numbered as Bhowanipur, P. S. Case No. 61 dated 26. 1. 1985 under section 302.

( 6 ) RATANLAL Mukherjee (P. W. 21) seized alamats from the place where the injured were found duly attested by witnesses. The viscera was sent after the post-mortem to the F. S. L. for opinion and report.

( 7 ) RATANLAL Mukherjee (P. W. 21) also examined some witnesses of the locality. In course of investigation, the police arrested Sambhunath Adhikari on 28. 5. 1985, Hiswanath Hui on 22. 3. 1985 and Sunil Sarkar on 29. 1. 1985. On conclusion of investigation charge-sheet was submitted against the accused persons under section 302 read the section 34 of the Indian Penal Code.

( 8 ) THE accused persons were put up for trial before the learned S. D. J. M. , Alipur but the case being exclusively triable by the Court of Sessions, the learned S. D. J. M. committed the case and the accused to the Court of Session to stand the trial. The trial Court framed charges against the two accused persons under section 302 read the section 34 of the Indian Penal Code. The charges so framed by the trial Court were read over and explained to each of the accused in Bengali who pleaded not guilty to the charge and claimed to be tried.

( 9 ) THE case of the defence as can be gathered from the mass of materials on the record and also from the explanations furnished by the accused under section 313 of the Code of Criminal Procedure, 1973 is of pure innocence. The past enmity was explored to haul them up with the case. The accused persons did not examine any witness. The trial ended in conviction of the accused persons when this Appeal before us.

( 10 ) THE following points, which, therefore, arise for consideration of this Court are: (1) Did the accused persons commit the death of Badal Das and Gajanan Cha

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