Convictions based on inconsistent witness testimony and insufficient evidence cannot stand; reliance on child witnesses requires careful scrutiny and corroboration.

JUDGMENT :

APURBA SINHA RAY, J.

1. As the above appeals arise out of the impugned judgment and conviction dated 18.04.2018 & 19.04.2018 passed by Sri Debasish Bandyopadhyay, Additional Sessions Judge, 1st Court, Alipore, South 24 Parganas in Sessions Trial No. 01(03)2012 arising out of the Sessions Case No. 10(09)2010 convicting the appellant(s) under Sections 302 /34 of the Indian Penal Code and also under Section 25 /27 of Arms Act, we propose to pass a single common judgment today which will dispose of all the appeals mentioned above, and accordingly, we pass the following judgment which will govern all the appeals, mentioned above.

2. Shorn of unnecessary details the crux of prosecution case, as is revealed, is that the defacto complainant, the sister of the lady victim, was informed by the victim's son that on the previous night the accused persons attacked their house and assaulted her mother with weapons and thereafter they took their mother to the nearby road. All the accused persons assaulted her with sharp cutting weapons. The victim's son and daughter, being afraid, took shelter in a nearby school and in the morning came to her house and informed them of the matter. The defacto complainant visited the place of occurrence and enquired from the local people and thereafter went to the concerned hospital where the victim was taken and thereafter lodged the complaint. Charge sheet was submitted and after compliance of necessary formalities, charges were framed against 10 accused persons under sections 302/34 Indian Penal Code (‘ IPC ’ in short henceforth) and also under section 25/27 Arms Act to which all the accused pleaded not guilty and claimed to be tried. The learned Trial Court being Learned Additional District & Sessions Judge, 1^st Court, Alipore South 24 Paraganas convicted 9 accused (one being dead during pendency of the trial namely, Gufar Molla) and sentenced them with rigorous imprisonment for life. This is the backdrop of the present appeal.

3. Appearing for the appellants, learned Senior Advocate, Mr. Sudipto Moitra challenged the conviction and sentence on several grounds, inter alia, that the investigation is perfunctory since it did not answer several questions raised by the defence, that though there is no whisper in the four corners of the FIR that the victim suffered gunshot injury, the prosecution case was developed by the witnesses subsequently in this regard, that the medical report shows that alleged bullet entered in the body of the victim, but there was no mark of exit of the said bullet, no attempt was made to recover the said bullet, if any, from the body of the victim, that the prosecution’s star witnesses were children and although there are several pre-conditions to accept the testimony of such witnesses in view of the law settled by the Hon’ble Apex Court in that regard but the same was not taken into consideration by the learned trial court at the time of passing the impugned judgment of conviction, that though neither any arms nor ammunition were recovered in connection with the case in hand, the trial court convicted the accused under the Arms Act most illegally, that the arms recovered in connection with another case were produced during the trial most astonishingly, that there was unreasonable and unexplained delay in lodging the FIR and therefore, the chances of manipulation of essential facts in the FIR were most likely, that there was also an unexplained delay in forwarding the FIR dated 02/12/2009 to the concerned ACJM Court for at least 3 days (05/12/2009), that the dead body was despatched for Post Mortem after 2 days of the incident (03/12/2009), that there were material discrepancies between ocular and medical evidence, that there were serious contradiction in the statements of the prosecution’s star witnesses being PW2 and Pw3 (son and daughter of the victim) recorded under section 161, 164 of Cr.P.C and their deposition before the trial court.

4. The learned Counsel for the Stat