JUDGMENT

Ananya Bandyopadhyay, J. - This instant appeal arises out of a judgment and order of conviction dated 25.11.2011 and 28.11.2011 passed by the Learned Additional Sessions Judge, Fast Track Court, 2nd Court, Alipurduar in Sessions Case No. 24/11, Sessions Trial No. 18/11 convicting the appellants under Sections 302/34 of the Indian Penal Code (for short IPC) and sentencing them to suffer rigorous imprisonment for life and to pay fine for Rs. 5000/- each in default further rigorous imprisonment of one year each.

2. The complaint dated 30.08.2010 narrated that the complainant Pradip Kalikote, uncle of Sarat Kalikote since deceased was asleep in his house on 29.08.2010 accompanied by his wife Binda Kalikote and daughter Ritu Kalikote. In between 10 pm. to 10:30 pm, he heard his aforesaid nephew crying out his name as 'uncle'. Thereafter, he lit up the lamp and saw the convicts namely Manjil Rai and Bidhan Mongar, the co-villagers to flee besides his house.

3. Having heard the voice of his nephew the complainant and his family members reached out to find his nephew Sarat Kalikote lying injured with a sharp weapon. Consequently he sought for the punishment of the culprits.

4. Based on the written complaint Jaigaon P.S case No. 294/2010 dated 30.08.2010 under Section 302 IPC was instituted and the investigation culminated through submission of charge-sheet against the aforesaid Manjil Rai and Bidhan Mongar under Section 302/34 IPC.

5. Subsequently, charges were framed against the appellants under Section 302/34 IPC to which they pleaded not guilty and claimed to be tried.

6. The prosecution cited 16 witnesses including 2 hostile witnesses and exhibited 9 documents in order to establish its case.

7. Mr. Arindam Jana, Learned Advocate appearing for the appellant no.1 stated that the written complaint mentioned a lamp whereas the prosecution evidence evinced the existence of a torch and stressed on the infirmity and inconsistency of the version of the complainant (PW1) with regard to the source of light in the complaint and the statements of the wife and daughter of the complainant (PW 1) to have seen the appellants to run away in the torchlight. It had been strenuously argued that despite PW1, PW 2 and PW3, no other independent witness corroborated their respective statement to have seen the appellants to flee from the spot.

8. The Ld. Advocate further stated the deceased used to reside alone in his house and it was surprising that the de facto complainant who used to look after the deceased and his property was unable to state the name and address of the son of the deceased Sarat Kalikote as such PW1, PW2 and PW3 were interested witnesses. He further stressed upon the fact that during his cross-examination the de facto complainant stated that the appellants had been good boys of the locality.

9. Motive to commit the murder of the deceased could not be established by the prosecution. The seizure of blood stained wearing apparel of the appellant Bidhan Mongar by the Police was not witnessed by PW5 and PW6 as adduced in their evidence and the said appellant too denied such seizure by the Police in his statement recorded under Section 313 Cr.P.C. and consequently the prosecution had failed to prove the seizure list marked as Exbt. 3. It was arduously argued that the FSL report did not elucidate the exact group of the blood on the offending weapon and the Ld. Trial Judge had erroneously concluded, the blood present on the offending weapon, control earth and the wearing apparels of the victim and the blood on the wearing apparel of the appellant Bidhan Mongar to be of the same group since the origin of the blood present in the earth of the Place of Occurrence and the PM blood could not be ascertained due to disintegration. The fingerprints of the appellants were not examined. The F.S.L. Report did not categorically state the blood on the seized articles matched with blood group of the victim. It was further argued that the torch in question