The central legal point established in the judgment is the reliance on corroborated evidence and the admissibility of statements leading to the discovery of facts to establish guilt under Section 302/34 of the Indian Penal Code.

JUDGMENT

Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 29.11.2016 and 30.11.2016 passed by learned Additional Sessions Judge, Fast Track 2nd Court, Hooghly in Sessions Case No. 49 of 2012/202 of 2014 convicting the appellants for commission of offence punishable under Section 302/34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 30,000/- each and in default to suffer further imprisonment for three years more.

2. Prosecution case, as alleged against the appellants is to the effect that on 27.09.2010 around 8.00 p.m., Apu Das had gone out of his house. At that time, he was assaulted by Sambhu Mishra with the assistance of his brother-in-law Sunil Das with a sharp cutting weapon.

3. Hearing hue and cry, Bishnupriya Das, mother of the victim (P.W. 1) rushed to the spot. Local people had also assembled at the spot. Seeing them, appellants fled away from the spot. Apu was removed to Chinsurah District Hospital where he was admitted. On the written complaint of Bishnupriya Das, Mogra Police Station Case No.167 of 2010 dated 27.09.2010 under Sections 341/326/34 of the Indian Penal Code was registered. Apu died in the hospital on 28.09.2010 at 1:40 a.m. Section 302 of the Indian Penal Code was added to the first information report. In the course of investigation, appellant No. 2 Sunil Das was arrested. On his leading statement weapon of offence, a blood stained knife, was recovered from a bush behind the boundary wall of a paper mill.

4. Thereafter, appellant No. 1 Sambhu Misra was arrested. In conclusion of investigation, charge sheet was filed against the appellants. Charge was framed under Sections 302/34 of the Indian Penal Code. Appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 11 witnesses and exhibited number of documents.

5. Defence of the appellant was one of innocence and false implication.

6. In conclusion of trial, the Trial Judge by the impugned judgment and order dated 29.11.2016 and 30.11.2016 convicted and sentenced the appellants, as aforesaid.

7. Learned Advocate appearing for the appellants argues none of the witnesses had seen the incident. Out of suspicion, appellants have been falsely implicated. So-called dying declaration of the victim as narrated by P.Ws. 1 and 3 was stated for the first time in Court. P.Ws. 2 and 9 who claimed to be present at the place of occurrence, however, did not corroborate the dying declaration. Recovery of the weapon of offence is not supported by the independent witness, P.W. 5. P.W. 7, the other witness to the seizure is a relation of the deceased. No label was found on the seized knife produced in Court. Seized knife had also not sent for forensic examination to establish that it was stained with blood. Hence, the prosecution case is without merits and the appeal is liable to be allowed.

8. On the other hand, Mr. Ahmed, learned Additional Public Prosecutor with Ms. Gaur submits incident occurred beside the house of the deceased. P.W. 1, mother of the deceased, rushed to the spot and found the appellant No. 1 Sambhu running away from the spot. Her son made a dying declaration to her which is corroborated by P.W. 3. P.W. 3 also saw Sambhu running away from the spot. P.W. 2 found a man running away. P.W. 1 disclosed to P.W. 2 that Sambhu had assaulted the victim. P.W. 9, sister of the deceased, had seen both the appellants run away from the place of occurrence. On the leading statement of the appellant No. 2, Sunil Das, a blood stained knife was recovered from a bush behind a boundary wall of a paper mill in the vicinity of the place of occurrence. Hence, the prosecution case against the appellants is fully established.

9. On an analysis of the evidence on record, I note P.Ws. 1, 2, 3 and 9 claimed to have come to the spot immediately after the incident.

10. P.W. 1, Bishnu Priya Das is the mother of the deceased and informant in the instant case. She depose