IMPORTANT POINT
Where the accused was not in any way prejudiced by not giving him an opportunity to answer specifically regarding evidence which was recorded in his presence, such evidence cannot be excluded from consideration by the Court.

JUDGMENT

A. K. Patnaik, J.

This is an appeal by way of special leave under Article 136 of the Constitution of India against the judgment dated 12.05.2006 of the High Court of Calcutta in C.R.A. No.244 of 2003 affirming the conviction of the appellant under Section 302 read with Section 34 of the Indian Penal Code (for short ‘IPC’) as well the sentence of life imprisonment imposed on the appellant by the trial court and dismissing the appeal of the appellant.

2. The facts briefly are that an FIR was lodged with the Officer-in- charge of the Garden Reach Police Station, Calcutta, on 11.02.2001 at about 10.18 P.M. by Md. Rashid Khan. In the FIR, Rashid stated that on 11.02.2001 at about 9.45 P.M. when he was sitting along with Md. Shamim Ansari at the junction of Iron Gate Road and Risaldar Gate Road and gossiping, Md. Jahangir alias Mughal walked along Iron Gate Road towards Garden Reach Road at about 9.50 P.M. Suddenly, they heard a sound of firing from the side of Iron Gate Road and both went there running and saw that eight to ten persons had encircled Mughal and were firing at him again and again. Mughal fell down on the street and the assailants fled away from the spot in different directions and he could recognize the appellant as one of the assailants. Thereafter, Rashid and Shamim and some people who had gathered from neighbouring areas took Mughal to Hannan Nursing Home at B-79, Iron Gate Road, where Mughal was declared dead. The Officer-in-Charge of the Police Station registered a case under Sections 120B/302, IPC, and 25(1B)(a)/27 of the Arms Act against the appellant and directed Sub- Inspector B.C. Sarkar to take up the investigation of the case. After investigation, chargesheet was filed against the appellant and Abuzar Hossain under Section 302/34, IPC, and the case was committed to the Sessions Court for trial.

3. At the trial, the prosecution examined as many as 24 witnesses. Rashid was examined as PW-3 and Shamim was examined as PW-4. Both PW- 3 and PW-4 supported the prosecution case as narrated in the FIR. Besides these two eyewitnesses, two more eyewitnesses, who on 11.02.2001 at about 9.00 P.M., were gossiping in front of a shop near the place of occurrence, Yusuf and Jahid, were examined as PW-5 and PW- 7 and they also supported the prosecution case as narrated in the FIR. The trial court, after considering the evidence of the four eyewitnesses as well as the medical and other evidence on record, held that both the accused persons, the appellant and Abuzar Hossain, were guilty of the offence under Section 302/34, IPC. The trial court also heard the parties on the question of sentence and sentenced each of the two accused persons to suffer life imprisonment and also each of the accused persons to pay a fine of Rs.5,000/- and in default to suffer R.I. for one more year. Aggrieved, the appellant filed C.R.A. No.244 of 2003 before the High Court but the High Court dismissed the appeal and affirmed the conviction and sentence imposed on the appellant by the trial court.

4. Mr. S.B. Sanyal, learned senior counsel for the appellant, submitted that the ocular evidence of PW-3, PW-4, PW-5 and PW-7 ought not to have been believed because it is inconsistent with the medical evidence in the present case. He submitted that these witnesses have said before the Court that the appellant and his associates surrounded the deceased and all of them fired at the deceased but the medical evidence reveals that there was only one bullet injury on deceased. He further submitted that as per the Forensic Science Laboratory report dated 04.06.2001, the bullet fired was of a .303" rifle, but the eyewitnesses have said that the assailants had fired from revolvers. He submitted that if a rifle has been actually used to kill the deceased, the firing must have taken place from a long distance and not from a short distance as alleged by the eyewitnesses. He further submitted that the truth is that Raju, who was the younger brother of the d