Out Of Sessions Case No. 46(4)03 ... vs State Of Madhya Pradesh
2022 Latest Caselaw 6720 Cal

cm
Item No.20


                   IN THE HIGH COURT AT CALCUTTA

                 CRIMINAL APPELLATE JURISDICTION

Present:
The Hon'ble Justice Ananya Bandyopadhyay


                            C.R.A. 586 of 2005

                    Panchu Gopal Ghosh & Ors.
                               With
                       State of West Bengal



For the Amicus Curie :          Mr. Rajeshwar Chakraborty

For the State           :       Mr. Binay Panda
                                Mr. Narayan Prasad Agarwalla
                                Mr. Pratick Bose.


Heard on                :       9th September, 2022

Judgment on             :       20th September, 2022

Ananya Bandyopadhyay, J. :-



       The instant appeal has been preferred against judgment

and order dated 30.07.2005 and 03.08.2005 passed by the

Additional Sessions Judge, Fast Track Court, 1st Court, Diamond

Harbour, South 24- Parganas in Sessions Trial No. 3(7)03 arising

out of Sessions Case No. 46(4)03 convicting the appellants under

Section 304(Part - I)/ 34 of the Indian Penal Code and sentencing
                                 2




the appellants to suffer rigorous imprisonment for seven years

each and to pay a fine of Rs. 2000/- only each, in default, to

suffer additional simple imprisonment for two months each for

the aforesaid offences.


      The prosecution case emanated out of the complaint dated

16.02.2003

which stated that the complainant Tahuran Bibi,

aged 60 years being the mother of the victim narrated that on

16.02.2003 around 1.30 hours while her son was going to

Barizpur Ghoshpara, the appellants, namely, Panchu Ghosh and

his two sons i.e. Arun and Kartick beat him up out of grudge

resulting in bleeding injury suffered by the victim who was

thereafter admitted in Diamond Harbour hospital and his

condition was not well. She requested for legal steps to be taken

for such action. Complaint was scribed by one Noor Nabi Gazi

cited as the prosecution witness No.1.

Based on the complaint Usthi P.S. Case No. 15 dated

16.02.2003 was initiated under Section 326/308/34 of the

Indian Penal Code and after the demise of the victim on

17.02.2003 Section 304 IPC was added along with the earlier

charges. Ultimately, charge-sheet was filed on 26.03.2003 under

Section 326/308/304/34 of the Indian Penal Code against the

appellants to which they pleaded not guilty and claimed to be

tried.

The learned Amicus Curie submitted that P.W.1 Noor Nabi

Gazi claimed himself to be a neighbor of the victim who had been

the scribe as well as the eye witness in the instant case. It was

further argued that wife of the appellant Panchu was seen to

assault the victim at the courtyard by the PW.1. However, her

name did not transpire in the written complaint nor she was

cited as an accused by the investigating officer, on the contrary,

she had been one of the prosecution witnesses. He further

contended that in spite of being an eye witness himself the scribe

did not describe the manner in which the appellants inflicted

injury on the victim resulting in his death. The nature of the

offending weapons was also not mentioned by the eye witness in

the written complaint. He was not examined by the investigating

officer. He deposed about the incident for the first time in the

Court and he did not mention any of the occurrences in the

written complaint. He further contended that the evidence of

PW.2 was unreliable and therefore to be disbelieved since she

was not present at the place of occurrence. She claimed to have

seen the injured being carried away to the bank of the tank

surprisingly did not reveal the same to any other person not even

to the investigating officer as she was not examined by the

Investigating Officer. There were inconsistencies in her evidence

as she stated to accompany the injured to the Diamond Harbour

Sadar hospital, Kolkata. However, during her cross-examination

she stated she did not admit the victim at Diamond Harbour

Sadar hospital. It was further contended that the prosecution

had declared PW.3 and PW.4 both to be hostile witnesses. He

strenuously argued that the dying declaration of the victim was

not recorded. The statements of persons recorded under Section

161 Cr.P.C. were not cited as prosecution witnesses. The wife of

one of the appellants Panchu Ghosh who was alleged to have

been an abettor was not cited as an accused but as a witness.

Though it was contended that the village was inhabited by 3000

to 4000 people but none of them deposed in the instant case.

One Banbehari Pahari who admitted the victim at Diamond

Sadar Hospital was not examined. He further stated that the

evidence of PW.3 i.e. wife of the appellant Panchu Ghosh was

inadmissible in view of Section 122 of the Indian Evidence Act.

There had been inconsistencies and infirmities in the evidence of

the prosecution witnesses. The prosecution had failed to prove its

case beyond reasonable doubt and, therefore, the appeal should

be allowed.

Learned advocate for the State submits that the complaint

had been lodged by the mother of the victim who instructed the

PW.1 scribe to state the incident of assault experienced by the

victim who had been her son. PW.1, PW.2, PW4, PW.5, PW6,

PW7, PW8 and PW.9 had corroborated the date and time of the

assault. Place of occurrence was amply justified as depicted in

the rough sketch map Marked as Ext. 7. wherein it had been

stated that the victim had been assaulted by the appellants at

the courtyard Marked as Ext. A. Thereafter taken to the tank of

the pond Marked as Ext.7D in the said rough sketch map. The

nature of injuries which were incised and the rigor mortis

corroborate the Post Mortem report. The version of PW.2

corroborated that of PW.6 concerning the fact that the victim was

admitted at the National Medical College by PW.2. PW.5 in his

cross examination stated that the nature of injuries did not

suggest to have been caused by combined 10 to 15 people which

negate the defence story of "Ganapituni". Moreover due to

serious injuries over the face and head of the victim and with

bandage, he was unable to talk and, therefore, the dying

declaration could not be recorded. In spite of negligence on the

part of the Investigating Officer, with regard to non-recovery of

offending weapons, seizure of wearing apparels, bloodstained

earth etc based on the corroborating statements of PW.1, PW.2,

PW.4, PW5 and PW7. prosecution was successful in establishing

its case beyond reasonable doubt and, accordingly the appeal is

liable to be dismissed.

PW.1 Noor Nabi Gazi during his deposition stated that the

victim Panchu Ghosh was known to him who was eventually

murdered one year back at 1 P.M. at the house of appellant

Panchu Ghosh of Ghoshpara, village Buruzpur. He stated to have

seen the appellants and the wife of the appellant Panchu Ghosh

assault the victim inside the courtyard. He stated to have left the

place of occurrence and thereafter the body of the victim was

kept on the bank of the tank on the plank of the road by the side

of the cemented bathing ghat. He accompanied the mother of the

victim to the police station and had written complaint as dictated

by PW.9 which was read over and explained to her and the same

was marked as Ext.1. He further stated that the victim was

assaulted with Bamboo sticks, bricks and Katari and he learnt

that the victim died at the hospital. He further stated the house

of the appellants was situated at a distance of less than 1 K.M.

on foot within 5 to 6 minutes. In the FIR he did not mention the

victim was assaulted by bamboo sticks, katari and bricks and

confirmed the fact to be true that the FIR did not state the place

of occurrence of the incident to be inside the courtyard of the

house of the appellants. He was not examined by the

Investigating Officer. Moreover, in the written complaint he did

not disclose the presence of any other person during the

occurrence of the incident or that the body of the victim was

shifted to another place from the actual place of occurrence.

PW.2 Rausanara Bibi was the full sister of the victim at the

place of occurrence. She learnt from the villagers that her brother

was assaulted by the appellants and she rushed to the spot and

found the appellants to keep her injured brother near the ghat of

a tank on the side of the village pathway. Eventually, she became

senseless and regaining her senses she took the victim to

Diamond Harbour Sadar hospital from where he was shifted to

Chittaranjan Hospital at Kolkata (National Medical College) and

died on the next morning. She had revealed the names of the

assailants to the doctor. She further stated she was not examined

by the investigating officer and was not able to state the names of

the persons who informed about her brother's assault. She

further stated that she did not express to anyone that she had

seen her brother being shifted way to the tank of the bank.

During her cross-examination she stated that she did not admit

her brother at the Diamond Harbour Sadar hospital. She stated

she was present when the police had admitted the victim.

The prosecution witness being No.3 and 4 were declared

hostile by the prosecution.

PW.5 Dr. Molly Banerjee during her examination stated she

was posted at NRS Medical College and hospital in the

department of forensic and State Medicine as a Demonstrator on

01.09.2003. She had conducted the post mortem examination of

the deceased Raich Ali Purkait at 3.10 P.M. and found the

following injuries:

"1. One abrasion 1" x ¼ " over the anterior triangle on left side of neck.

2. One abrasion 1/2" x 1/2" over the middle of chin.

3. One stitched up wound obliquely placed over the right side of face 2" long with four stitches, half inch lateral to the outer canthus of right eye 1" above right mala prominence. On removal of the stitches, it is seen to be an incised chop wound of muscle depth.

4. One stitched up wound 2" long with four stitches more or less, transversely placed on left side of forehead starting at the mid-line and at the level of left eye-brow. On removal of

the stitches, it was seen to be an incised chop wound of bone depth.

5. One stitched up wound 1½" long with two stitches placed obliquely on the left side of the forehead starting at midline and ¼ above the fronto-nasal junction. On removal of the stitches, it is seen to be an incised chop wound of bone depth.

6. One stitched up wound 1" long with two stitches, more or less transversely placed ¼" lateral to mid-line and 1" above the left eye brow. On removal of the stitches, it is seen to be an incised chop wound of bone depth.

7. One stitched up wound, 2" long with four stitches, placed obliquely over the left frontal eminence of left forehead half inch left to the midline and 1½" above the left eye-brow. On removal of the stitches, it is found to be on incised chop wound of bone depth width scalp haemotoma 3" x 2" surrounding it.

8. One stitched up curved wound, 4" long with six stitches on the left side of the head over the fronto-pariental region 4" above the fronto nasal junction ¾ lateral to the mid-line. On removal of the

stitches, it is found to be an incised chop wound of bone depth with evidence of livelling (sic) direction of wound is transverse and medial in warts with evidence of scalp heamotoma 4" 2 ½" surrounding it.

9. One stitched up wound, 2" long with 4 stitches placed transversely and medial warts on the left side of the head over the left temporal region at a level 2" above the tip of left mastoid process and 2" below the left pariental eminence. On removal of the stitches, it is seen to be an incised chopped wound of cranial cavity depth, cut the hair bul (sic), scalp, made a cut fracture on squamous parts of left temporal bone 1¾" long, on removal of the stitches, it is seen to be an incised chop wound of cranial cavity with involvement of scalp, cut-fractured temporal bone 1 ¾ long a made a cut over the meanings and finally terminated on left temporal lobe of brain underneath with the sub-dural Haemotoma surrounding it of 2" x ½" area.

On dissection, I found

(1) A scalp Haematoma, 3" x 2" over right fronto temporal region of scallop

(2) Sub-Dural Haemotoma all over cerebral hemispheres including the under surface."

She conclusively opined that the death was due to the

effects of injuries which were ante mortem and homicidal in

nature. The post mortem report was Marked as Ext. 3 which had

the concurrence of Dr. Dipankar Guha Rai, the head of the

Department FSL, Kolkata. All the injuries had been on the head

and face of the deceased. During her cross-examination she

stated that " it is false to allege that 10 to 15 people assaulted the

deceased".

PW.6 Dr. Subir Muhuri in his deposition stated to have

been posted at Calcutta Medical College and Hospital as a

medical officer. On 16.02.2003 he was in similar position and

had examined the victim Raich Ali Purkait who was admitted by

Rausanara Bibi in PW.2 and noted the place of assault in the

hospital records to be Barizpur P.S. Usthi. PW.2 at the time of

admission stated that the victim Raich Ali Purkait was assaulted

with "Chopper" by the appellants. The patient was drowsy and

had been referred from Diamond Harbour Sadar hospital to be

admitted. He had pulse rate of 68 per minute. There were

dressings all over the scalp and face of the victim as a

consequence of which he was unable to talk. PW.6 stated that

since he did not examine the patient it was not possible for him

to state the nature of weapon used in assaulting the victim. The

carbon copy of the report maintained in the hospital with regard

to the admission of the victim marked as Ext. 5. He did not

examine the victim.

PW.7 Dr. Hiranmoy Bhattacharyya was Associate professor

in the Department of Surgery in National Medical College and

hospital under whom the victim had been admitted.

PW.8 Ajit Kumar Sikdar during his evidence stated to have

retired from the service. On the relevant date of the incident i.e.

16.02.2003 he was posted at Usthi P.S. as S.I. of police. Usthi

P.S. Case No. 15 dated 16.02.2003 was endorsed to him for

investigation by the then OC, Biswajit Banerjee. The formal FIR

was drawn by ASI, Sisir Kumar Majumder whose hand writing

and signature was known to PW.8 and the said formal FIR was

Marked as Ext.6 which endorsed him to conduct the investigation

and such endorsement was marked as Ext. 6/1 and case was

initiated under Section 326/308/34 of the Indian Penal Code.

After the death of the injured on 17.02.2003 charge under

Section 304 of the Indian Penal Code was added. The victim was

initially admitted at Diamond Harbour Sadar hospital wherefrom

he was shifted on reference to Chittaranjan Medical College and

Hospital at Calcutta. He initiated his investigation by visiting the

place of occurrence and prepared a sketch map and the same

was signed by him Marked as Ext.7. He examined several other

witnesses under Section 161 Cr.P.C. namely Sandhya Ghosh wife

of the appellant Panchu Ghosh, Smt. Panchami Ghosh, wife of

Bholanath Ghosh, Smt. Mamata Ghosh, wife of late Judistir

Ghosh, Ram Dular Ghosh, S/o late Bhupal Ghosh, Sukurmar

Ghosh, S/o Late Pramotho Chandra Ghosh all of Barizpur

village. He had also recorded the statement of the complainant

Tahuran Bibi and Noor Nabi Gazi under Section 161 Cr.P.C. He

had arrested the appellants on 16.02.2003 from Barizpur village.

After the demise of the victim on 17.02.2003 he collected the post

mortem report of the deceased and on completion of the

investigation submitted charge-sheet.

During his cross-examination he stated that the house of

Noor Nabi Gazi and Tahurun Bibi was situated in the village of

Uttar Kusum which was at a distance of more than one K.M.

away from the village where the appellants had been the

residents. The village did not have pucca road. He further stated

that Barizpur is a big village inhabited by 3000 to 4000 people. In

the rough sketch marked as Ext.7, he did not mention the

distance between Barizpur ghat entrance road and the place of

occurrence. He also did not mention the distance of the tank

from the place of occurrence. He did not mention the distance

between one spot and another in the sketch map. He further

stated that the deceased victim was a FIR named accused in

another case under Usthi P.S. case No. 65/2002 under Section

302 of the Indian Penal Code and confirmed the fact that the

deceased was a notorious criminal in the locality. He further

stated that he was aware of the enmity between different criminal

gangs. He further stated that he did not record the statement of

Banbehari Pahari under Section 161 Cr.P.C. He further did not

seize any weapon of the offence. He stated that the deceased was

alone when he was murdered as per complaint. On suggestion he

denied that he did not explore the real motive behind the murder

of the victim.

PW. 9 Tauran Bibi the mother of the victim's evidence was

recorded on commission. She stated that her son was murdered

in the month of Falgoon two years ago at about 12.01 P.M. at the

house of the appellants in the village of Barizpur. The appellants

murdered his son Raich Ali Purkait. Being informed of the

incident she rushed to the place of occurrence and saw the

appellants assaulting her son with "Chalakat" and "katari". The

public rushed to the place of occurrence. Her son was shifted to

the hospital at Diamond Harbour wherefrom he was referred to

the hospital in Calcutta where he died. She stated to have lodged

complaint at the police station.

During her cross-examination she stated she had been bed

ridden for one and half years. Prior to her son's death she was

physically well. She stated that on 'Haka Haki' by the public that

the victim was being assaulted, she rushed to the place of

occurrence. She further stated that 15 to 20 people including

female, children were present at the place of occurrence.

However, she was not able to state their names as she was

puzzled. She further stated that her son, daughter and another

person had taken the victim to the hospital. She further stated

that she did not state the names of the person who had taken her

son to the police and she did not mention in the written

complaint that her son was assaulted by katari nor did she state

the body parts that sustained injuries. She stated her family

members were present during the occurrence. She stated the

complaint was written at the police station. On suggestion she

denied that her son was dacoit but was in fruit business. She

stated that she had met PW.1 i.e. Noor Nabi Gazi at the police

station.

Based on the rival submissions it is imperative to assess

the evidence on record.

PW.1 in his evidence stated that he had seen the

appellants and his two sons and the wife of the appellant Panchu

Ghosh assaulting the victim. It was surprising that he left the

place having witnessed the incident of assault without raising

alarm or instantly reporting the incident to the police or seeking

any kind of assistance from other persons in order to save and

protect the victim from being assaulted. If he had been the eye

witness to have seen the entire episode of assault of the victim by

the appellants, he inevitably was the best person to narrate the

entire incident to describe the manner and intent in which the

assault took place. In the complaint, he did not mention that the

wife of the appellants Panchu Ghosh was also one of the

miscreants. He did not describe the nature of the offending

weapons used by the victim to cause such assault according to

his knowledge namely bamboo sticks, bricks and kathari. PW.8

investigating officer in his cross examination stated that he had

recorded the statement of PW.1 under Section 161 Cr.P.C.

though the same was refuted by PW.1 in his cross examination

stating that he was never examined by the investigating officer.

PW.9 mother of the victim stated there were 15 to 20 people

assembled at the place of occurrence who created a commotion

and clamour which compelled her to reach the place of

occurrence. This fact was not mentioned in the written

complaint. PW.1 in his evidence stated that he had accompanied

the mother of the victim to the police station, however, PW.9 the

mother of the victim stated that he had met PW.1 at the police

Station. In his cross-examination PW.1 stated that he had seen

the victim to be taken near the ghat of a tank but the same was

not mentioned in the complaint. PW.2 the sister of the victim was

post occurrence witness who was not examined by the

investigating officer. She could not state the names of the

persons who informed her about her brother being assaulted.

She stated that she had taken her brother to Diamond Harbour

Sadar hospital in-chief, however, denied the same during her

cross-examination. Her evidence is the based on hearsay.

From the evidence on record, it transpired that she was

absent at the time the victim was admitted in Diamond Harbour

Sadar hospital. She was present at the time of the admission of

the victim at Chittaranjan Medical College. The medical certificate

marked as Ext. 2 revealed that a person Banbehari Pahari of

Usthi Palpara, PS. Usthi from Barizpur had brought the victim to

the hospital. The victim was mentioned as unknown who was

bleeding profusely with blood from his mouth over the face and

was admitted under one Dr. Jafar Ali. There was no reason for

the prosecution to declare the independent witness to be hostile

who had no connection with the instant case or any relation

either with the appellants or the victim. PW.4 had no reason to

depose falsely in the court since he had been the independent

witness and only attended to the victim as placed before him

without any kind of previous relationship of the parties. It is one

of the peculiar instances where the prosecution chose to

disbelieve the deposition of a doctor for the reasons best known

to the prosecution case.

Moreover, PW.8 i.e. the Investigating Officer did not record

the statement of PW.4 under Section 161 Cr.P.C. to confront him

during examination before the court. There was no plausible

reason for PW.4 to manufacture the medical certificate marked as

Ext. 2. PW.1 stated that the victim was assaulted with Bamboo

sticks, bricks and katari and the same were not mentioned in the

written complaint. PW.9 during her examination on commission

stated that the victim was assaulted with Chalakat and katari.

The prosecution failed to recover the offending weapons. PW.1

stated that the victim was assaulted in the house of appellant

No.1 Panchu Ghosh. PW.2 also stated that the same venue of the

assault to be the house of appellant No.1 along with PW.9. Both

the PW.2 and PW.9 were not present at the time of occurrence of

the incident. PW.9 during her examination stated that hearing

the news she rushed to the place of occurrence and saw that the

appellants were assaulting her son the victim with "chalakat and

katari". During her examination in chief as well as cross-

examination she stated that she went to the place of occurrence

on being informed by the public. According to her 15 to 20 people

including female, children were present at the place of

occurrence. She further stated during her cross-examination that

her family members were present during the occurrence. She also

stated that half an hour is required to reach to her house from

the place of occurrence. There are inconsistencies and infirmities

in her evidence and is not trustworthy. She did not mention the

name of any family member who had informed her of the

incident. Nowhere in the evidence it has transpired that the

entire incident took place for more than 30 minutes for her to be

at the spot where the victim was being assaulted. PW.1 stated

that the body of the victim was kept on the tank of the bank but

did not name the persons who changed the place of occurrence

taking him from the courtyard to the bank on the tank of the

plank. During his cross-examination he stated that he was not

examined by the Investigating Officer who however, in his cross-

examination stated that he was examined by PW.1 claiming to

have witnessed the incident of assault and one to have narrated

the entire incident to the complainant i.e. PW.9 who dictated him

to write the complaint and did not mention the mode and manner

in which the assault took place. Not a single person was

mentioned in the written complaint or cited as witness by the

prosecution to have seen the entire incident to occur as claimed

by PW.9. PW.2 did not accompany the victim to the Diamond SD

Sadar hospital as she herself stated the same during her cross-

examination, however, she was present at the time when the

victim was taken to Calcutta Medical College. Therefore, it is

evident that third party must have taken the victim to be

admitted at Diamond Harbour Sadar Hospital namely Banbehari

Pahari whose name transpired from the document marked as

Ext.2. However, the prosecution did not examine the said person.

The motive to commit the crime in the instant case has not been

established by the prosecution. It has been stated that the victim

was assaulted by the appellants due to grudge, however, the

element of grudge to have been exercised by the appellants on the

victim was not established. PW.8 during his evidence stated that

the victim was an accused in connection with Usthi PS. Case No.

65 of 2003 under Section 302 of the Indian Penal Code and he

had been a notorious criminal. However, no such criminal

antecedents concerning the appellants came on record. PW.8 has

failed to identify the exact place of occurrence of the incident and

the same was not mentioned in the rough sketch map.

Learned advocate for the State submitted that investigating

officer had recorded the statement of witnesses under Section

161 Cr.P.C. to have been family members of the appellants, and,

therefore, not cited as a witness. In the presence of 15 to 20

people if the incident had been committed in the village or the

person who had informed PW.2 and PW.9 of the incident could

have been cited as a witness to create a chain of link to establish

the prosecution case. Wearing apparels of the victim were not

seized, the bloodstained earth found the place of occurrence was

also not seized for FSL examination. It is the fact that PW.2 was

present at the time when the victim was admitted at Calcutta

Medical College on the reference from the S.D. hospital Diamond

Harbour. But the victim was not accompanied by either PW.1,

PW.2 or PW.9 to the S.D. hospital contrary to the claim of PW.9

to have been present at the place of occurrence. There are

infirmities and inconsistencies in the evidence of PW.1, PW.2 and

PW.9 with regard to the place of occurrence of the incident. PW.9

did not state in her deposition regarding the cause of grudge

which the appellants might have had against the victim to

express the same into commission of crime against him.

In the case of Nandu Singh V. State of Madhya Pradesh,

the Hon'ble Supreme Court observed that,

"10. In a case based on substantial evidence, motive

assumes great significance. It is not as if motive alone

becomes the crucial link in the case to be established by the

prosecution and in its absence the case of Prosecution must

be discarded. But, at the same time, complete absence of

motive assumes a different complexion and such absence

definitely weighs in favour of the accused.

11. In Anwar Ali Vs. State of Himachal Pradesh, (2020)

10 SCC 166 this court made the legal position clear in

following words:

24. Now so far as the submission on behalf of the accused

that in the present case the prosecution has failed to establish

and prove the motive and therefore the accused deserves

acquittal is concerned, it is true that the absence of proving the

motive cannot be a ground to reject the prosecution case. It is

also true and as held by this Court in Suresh Chandra Bahri V.

State of Bihar, 1995 Supp(1) SCC 80 that if motive is proved

that would supply a link in the chain of circumstantial evidence

but the absence thereof cannot be a ground to reject the

prosecution case.

However, at the same time, as observed by this Court in

Babu v. State of Kerala, (2010) 9 SCC 189, absence of motive

in a case depending on circumstantial evidence is a factor that

weighs in favour of the accused. In paras 25 and 26, it is

observed and held as under: (Babu case, SCC pp.200-01)

Prosecution failed to establish the motive of the appellants

to commit the offence. PW.9 i.e. the mother of the victim in her

complaint as well as in her evidence stated that the appellants

had grudge against the victim and to sub-serve the same

murdered him. However, the element of grudge was not proved by

the prosecution. The prosecution failed to prove the exact place of

occurrence of the crime. The offending weapons were not

recovered. Bloodstained earth etc. were not seized and not sent

for FSL Examination. Irregularities and illegalities arising out of

defective investigation cannot disprove the prosecution case when

creditworthy evidence is present to incriminate the assailants. In

the instant case inconsistencies and infirmities in the evidence of

PW.1, PW.2 and PW.9 weakened the prosecution case. The

prosecution, however, failed to establish the motive and in view of

the aforesaid observation, I am of the opinion that the

prosecution has failed to prove its case beyond reasonable doubt

and appeal is accordingly, allowed and the conviction is set aside.

Period of detention suffered by the appellants during

investigation, enquiry and trial shall be set off against the substantive

sentence imposed upon him in terms of Section 428 of the Code of

Criminal Procedure.

Lower court records along with copies of this judgment be sent

down at once to the learned trial court.

I record my appreciation for the able assistance rendered by

Mr. Rajeshwar Chakraborty, learned Advocate as amicus curiae in

disposing of the appeal.

Photostat certified copy of this order, if applied for, be given to

the parties on priority basis on compliance of all formalities.

(Ananya Bandyopadhyay, J.)