(1) This appeal is directed against a judgment dated 27th January, 1999 passed by the learned additional Sessions Judge, 5th Court at alipore (since elevated to this Court) in sessions Trial No. 2 (5) of 1998 arising out of sessions Case No. 36 (1) of 1998 convicting the accused Md. Kamal @ Manu and acquitting the accused Abdul Rahaman of the charge under Section 302 of the Indian penal Code read with Section 34 thereof. By an order dated 28th January, 1999 the convict was sentenced to suffer rigorous imprisonment for life as also to pay a fine of Rs. 5,000/- in default to suffer further rigorous imprisonment for a period of one year.

(2) The facts and circumstances of the case appearing from the evidence may briefly be summarized as follows :-In the early hours of 16th May, 1995 Sk. Halim (P. W. 2), Ahmed Raja and Sajjad were playing Dominos (we are told by the counsel that it is a game of cards) in the house of p. W. 2 Sk. Halim. The victim Aslam was sitting by the side of the aforesaid three players. At about 2. 50 hours on 16th May, 1995 the victim Aslam was shot at. We already have seen that there were four persons. Three of them were playing and the victim aslam was sitting by their side. These three players are P. Ws. 1, 2 and 3. Each one of them turned hostile and was cross-examined by the prosecution. P. W. 3 in his cross-examination deposed as follows :-

"i know Aslam. Aslam was seated by our side when we were playing. Aslam sustained bullet injury. "

P. W. 2 in his examination-in-chief deposed as follows :-

"aslam sustained injuries. Aslam was sitted by our side when we were playing. "

P. W. 1 merely deposed that hearing the sound he fled away. These three witnesses did not divulge the name of the assailant. From the evidence of the P. W. 10, father of the victim, it appears that the assailant was the appellant. The evidence of the P. W. 10 in that regard is as follows :-

"on 16th of a month in the year 1995 at 2. 05 a. m. occurrence took place. I was lying on my bed in the room. In the night the window of my room was being knocked. I asked who was the caller and the reply was I am aslam. My son asked me to open the door immediately as he had been fired by Manu. I opened the door and found him profusely bleeding. My son requested me to immediately hospitalise him. I took him to Hannan's nursing Home. The Nursing Home refused to admit my son as it was a police case. Then i took him to Government Hospital. There he was admitted. "

(3) No significant deviation was elicited from him during his cross-examination by the defence. P. W. 10 was suggested that out of enmity the appellant had been falsely implicated in this case which he denied. We already have seen from the evidence of the p. W. 10 that the victim was taken by his father to the Nursing Home of Dr. Hannan but the patient was not admitted because it was a police case.

(4) P. W. 11 deposed that at 3. 00 a. m. on 16th May, 1995 his assistance was sought for by the P. W. 10 for the purpose of taking the victim to the S. S. K. M. Hospital. From the evidence of the P. W. 17 it appears that at 3. 10 hours on 16th May, 1995 he got a message pertaining to the incident which was recorded by him and has been marked Exhibit 9 which read as follows :-

"1084 03-10 Hrs. Md. Hasim of H-126 Shyamlal lane called over telephone at the police station and informed that Manu and Abdul rahaman both of Shyamlal Lane attacked his son Md. Aslam @ Chiku Aslam with fire arms and Manu inflicted injury on Chiku aslam by. firing at him from a one shorter fire arm today at about 02. 50 hours at g-180 Shyamlal Lane. Chiku Aslam has been taken to hospital by local boys. Accordingly left for ascertaining fact. Sd/- Illegible"

(5) Evidence of the P. W. 17 in that regard is as follows :-

"at about 3. 10 hrs. I got a telephonic message from one Md. Hasim, son of Late Fakira of H-126, Shyamlal Lane, Calcutta-24 to the effect that one Manu and one Abdur rahaman attacked his son Md. Aslam by firing fr