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2009 DIGILAW 31 (CAL)

Md Kamal Alias Manu v. STATE OF WEST BENGAL

2009-01-22

G.C.GUPTA, KISHORE KUMAR PRASAD

body2009
JUDGMENT (1) This appeal is directed against a judgment dated 27th January, 1999 passed by the learned additional Sessions Judge, 5th Court at alipore (since elevated to this Court) in sessions Trial No. 2 (5) of 1998 arising out of sessions Case No. 36 (1) of 1998 convicting the accused Md. Kamal @ Manu and acquitting the accused Abdul Rahaman of the charge under Section 302 of the Indian penal Code read with Section 34 thereof. By an order dated 28th January, 1999 the convict was sentenced to suffer rigorous imprisonment for life as also to pay a fine of Rs. 5,000/- in default to suffer further rigorous imprisonment for a period of one year. (2) The facts and circumstances of the case appearing from the evidence may briefly be summarized as follows :-In the early hours of 16th May, 1995 Sk. Halim (P. W. 2), Ahmed Raja and Sajjad were playing Dominos (we are told by the counsel that it is a game of cards) in the house of p. W. 2 Sk. Halim. The victim Aslam was sitting by the side of the aforesaid three players. At about 2. 50 hours on 16th May, 1995 the victim Aslam was shot at. We already have seen that there were four persons. Three of them were playing and the victim aslam was sitting by their side. These three players are P. Ws. 1, 2 and 3. Each one of them turned hostile and was cross-examined by the prosecution. P. W. 3 in his cross-examination deposed as follows :- "i know Aslam. Aslam was seated by our side when we were playing. Aslam sustained bullet injury. " P. W. 2 in his examination-in-chief deposed as follows :- "aslam sustained injuries. Aslam was sitted by our side when we were playing. " P. W. 1 merely deposed that hearing the sound he fled away. These three witnesses did not divulge the name of the assailant. From the evidence of the P. W. 10, father of the victim, it appears that the assailant was the appellant. The evidence of the P. W. 10 in that regard is as follows :- "on 16th of a month in the year 1995 at 2. 05 a. m. occurrence took place. I was lying on my bed in the room. In the night the window of my room was being knocked. The evidence of the P. W. 10 in that regard is as follows :- "on 16th of a month in the year 1995 at 2. 05 a. m. occurrence took place. I was lying on my bed in the room. In the night the window of my room was being knocked. I asked who was the caller and the reply was I am aslam. My son asked me to open the door immediately as he had been fired by Manu. I opened the door and found him profusely bleeding. My son requested me to immediately hospitalise him. I took him to Hannan's nursing Home. The Nursing Home refused to admit my son as it was a police case. Then i took him to Government Hospital. There he was admitted. " (3) No significant deviation was elicited from him during his cross-examination by the defence. P. W. 10 was suggested that out of enmity the appellant had been falsely implicated in this case which he denied. We already have seen from the evidence of the p. W. 10 that the victim was taken by his father to the Nursing Home of Dr. Hannan but the patient was not admitted because it was a police case. (4) P. W. 11 deposed that at 3. 00 a. m. on 16th May, 1995 his assistance was sought for by the P. W. 10 for the purpose of taking the victim to the S. S. K. M. Hospital. From the evidence of the P. W. 17 it appears that at 3. 10 hours on 16th May, 1995 he got a message pertaining to the incident which was recorded by him and has been marked Exhibit 9 which read as follows :- "1084 03-10 Hrs. Md. Hasim of H-126 Shyamlal lane called over telephone at the police station and informed that Manu and Abdul rahaman both of Shyamlal Lane attacked his son Md. Aslam @ Chiku Aslam with fire arms and Manu inflicted injury on Chiku aslam by. firing at him from a one shorter fire arm today at about 02. 50 hours at g-180 Shyamlal Lane. Chiku Aslam has been taken to hospital by local boys. Accordingly left for ascertaining fact. Sd/- Illegible" (5) Evidence of the P. W. 17 in that regard is as follows :- "at about 3. 10 hrs. I got a telephonic message from one Md. 50 hours at g-180 Shyamlal Lane. Chiku Aslam has been taken to hospital by local boys. Accordingly left for ascertaining fact. Sd/- Illegible" (5) Evidence of the P. W. 17 in that regard is as follows :- "at about 3. 10 hrs. I got a telephonic message from one Md. Hasim, son of Late Fakira of H-126, Shyamlal Lane, Calcutta-24 to the effect that one Manu and one Abdur rahaman attacked his son Md. Aslam by firing from fire-arms at 2. 50 hours on the night of 16-5-95 at G-180, Shyamlal Lane and Aslam was being taken to S. S. K. M. Hospital. I diarised the message. Under the order of the O. C. , I took up investigation of the case on 16-5-95. At first I went to s. S. K. M. Hospital and reached there at 4. 25 a. m. on 16-5-95 and in the Cardio-thorasic unit I found the victim Md. Aslam and there in presence of the doctor I recorded the statement of the victim Md. Aslam. This is the statement of the victim recorded by me in the hospital in presence of the doctor (Ext. 1). This is the signature of Dr. Sibojyoti ghosh who signed in my presence. This is the signature of the victim Md. Aslam (Ext. 1/2) (after objection). This is my signature (Ext. 1/3). " (6) The said statement of the victim Md. Aslam has been marked Exhibit 3 which reads as follows :- "statement of Md. Aslam s/o Md. Ashim of H-126, Shyamlal Lane. What is your name : My name is Md. Aslam. What is your father's name : My father's name is Md. Hashim. What is your address. My address is H-126, Shyamlal lane, Calcutta-39. What is your age - I am aged about 24 years. How you got injury.- Manu of Shyamlal lane and Abdul Rahaman (leader) came to 180, Shyamlal Lane at 02-50 hours on 16-5-95 and fired by a single shorter fire arm to me while I was playing Dominos with ahmed, Halim and Takla. Manu fired at me to kill me. Sd/- Md. Aslam. Sd/- Illegible Ext. 3/2 16-5-95 (Ext. 3) Sd/-Illegible. 20-8-98. Dr. Sibojyoti Ghosh. SSKM Hospital. Ext. 3/1, 5th ASI, 30-6-98. Recorded by me, read over, explained and admitted to be correct. Sd/- Illegible ext. 3/3 16-5-95 sd/- Illegible 5th ASI 20-8-98. Manu fired at me to kill me. Sd/- Md. Aslam. Sd/- Illegible Ext. 3/2 16-5-95 (Ext. 3) Sd/-Illegible. 20-8-98. Dr. Sibojyoti Ghosh. SSKM Hospital. Ext. 3/1, 5th ASI, 30-6-98. Recorded by me, read over, explained and admitted to be correct. Sd/- Illegible ext. 3/3 16-5-95 sd/- Illegible 5th ASI 20-8-98. " The statement of the victim was recorded, as already noticed, in the presence of Dr. Ghosh who deposed as follows :-"on 16-5-95 I was attached to S. S. K. M. Hospital as Medical Officer in Cardiothorasic unit. On 16-5-1995 a S. I. of Police recorded a statement of Md. Aslam in my presence in s. S. K. M. Hospital. This in my signature in the statement as witness. The patient narrated the statement. S. I. wrote down the statement. Police Officer asked me to sign. I cannot remember if the statement was read out and explained to the maker of the statement. This is signature (Exbt. 3/1). " (7) The P. W. 17 after recording the telephonic message in the diary marked Ext. 9 had rushed to the hospital accompanied by two constable Anukul Chandra and dhirendra Chandra Das. They were examined as P. Ws. 12 and 13. They have corroborated the evidence of the P. W. 17. (8) An injury report appearing to have been prepared by Dr. D. N. Mondal was relied upon by the teamed Counsel for the appellant although that document has not been marked an exhibit. From the injury report we find corroboration of the fact that the victim was examined in the S. S. K. M. Hospital at 4. 20 hours on 16th May, 1995 and was brought to the hospital by his father Md. Hasim. P. W. 10. It also appears from the injury report that upon examination a bullet injury on the right side of the chest was found and the abdomen was tensed. At 8. 15 hours on 16th May, 1995 the victim underwent a surgical operation conducted by Dr. Bhattacharyya, P. W. 5. The condition of the patient deteriorated during the operation and, therefore, the operation had to be concluded in haste without pursuing the search for bullet. P. W. 5 deposed in that regard as follows :- "bullet could nqt be traced in abdomen during all these procedures. However, no further search for bullet was carried out as patient's general condition was extremely bad in the situation. P. W. 5 deposed in that regard as follows :- "bullet could nqt be traced in abdomen during all these procedures. However, no further search for bullet was carried out as patient's general condition was extremely bad in the situation. Recovery following anesthesia was not perfectly satisfactory and therefore considering patient's extremely critical situation, patient was transferred at the arrangement to Respiratory Clinic Unit. By operation I repaired all the damages. This is my report of operation and treatment prepared under my handwriting and signature (Exbt. 2). " (9) From the evidence of the P. W. 8 it appears that the victim was shifted to the department of Anaesthesiology and respiratory Intensive Care Unit of the S. S. K. M. Hospital at 4. 10 p. m. on 16th May, 1995. (10) The victim died at 11. 55 p. m. on 16th may, 1995 as would appear from the Death certificate marked Exhibit 6. The cause of death appearing from the death certificate was "cardio respiratory failure in a case of bullet injury. " The post mortem was conducted by dr. Das. (P. W. 18). He opined that the death was due to the effect of gun shot injury which was anti-mortem and homicidal in nature. The autopsy surgeon found evidence of scorching and tattooing. (11) The wearing apparels of the victim made over to the police in the presence of ward Master, the P. W. 16 were seized vide by seizure list marked Exhibit 4. The ex-hibit 4 goes to show that from the room of the Ward Master at Curzan Ward of the s. S. K. M. Hospital blood stained white lungi with blue square stripes in connection with p. S. Case No. 56 dated 16th May, 1995 were seized. (12) SAMPLE of blood was recovered by the police between 8. 30 hours and 9. 00 hours on 16th May, 1995 from premises No. 180 Shyamlal Lane in a piece of cotton. The seizure list contains the fallowing recital:- "the blood stained was found on the varandah (open) G-180 Shyamlal Lane where attempt to murder of the victim was made by the accused persons. The seizure list has been marked Exhibit 1. " The accused Abdul Rahaman was arrested on the basis of source information by the P. W. 17 but the appellant could not be arrested until 20th December, 1995. The seizure list has been marked Exhibit 1. " The accused Abdul Rahaman was arrested on the basis of source information by the P. W. 17 but the appellant could not be arrested until 20th December, 1995. The evidence of P. W. 17 in that regard is as follows :- "on 20-12-951 secured arrest of the other accused Md. Kamal @ Manu who was arrested in c/w a dacoity case relating to ballygunge P. S. and under B. O. I secured his presence. " (13) MR. Mukherjee, the learned Advocate, appearing in support of the appeal advanced the following submissions. (a) The dying declaration (Exhibit 3) is a suspicious document. It does not contain when and where was the same recorded. The mental state of the patient when the statement was recorded has also not been reflected therein nor is there any certificate given by any qualified doctor stating that the patient was mentally alert to make the statement. There are interpolations in the dying declaration. The statement appears to have been recorded in the presence of Dr. Sibojyoti Ghosh, P. W. 6 but he was not working under Dr. M. M. Chowdhury in whose care the victim Aslam had been admitted as would appear from the evidence of Dr. Chowdhury, P. W. 7. The presence of Dr. Ghosh, P. W. 6 is also doubtful because he belonged to Cardiothorasic Unit whereas the patient was admitted to Curzon Ward. On the top of that in the forwarding report dated 16th May, 1995 that is to say on the date of the incident itself concerned the co-accused abdul Rahaman, there is no indication as regards any such dying declaration. He, therefore, submitted that the dying declar ration which is the sheet-anchor of the prosecution is a suspicious document and cannot be relied upon. In support of his sub-mission he relied on a judgment in the case of Maniram v. State of Madhya Pradesh reported in 1994 Cr LR (SC) 118 : (1994 Cri lj 946) wherein the following view was taken (Para 3 of Cri LJ) :- "as already submitted, Ex. P. 7 is only in the nature of the F. I. R. and it was recorded by the Sub-Inspector and that by itself does not inspire confidence. Now coming to Ex. P. 7 is only in the nature of the F. I. R. and it was recorded by the Sub-Inspector and that by itself does not inspire confidence. Now coming to Ex. P. 19, P. W. 10 deposed that he recorded the dying declaration and he himself attested that the patient was conscious. He was cross-examined at length as to why he did not ask the doctor to be present and certify whether the patient was conscious. He has not given any convincing answer. That apart, he admitted that he did not think it necessary to take the signature of the deceased person or at least take the thumb impression. Further, a perusal of the dying declaration shows that the Sub-Inspector was present and he has affixed his signature on ex. P. 19 and put the date and time which is exactly the time at which the recording of the dying declaration is said to have been recorded by P. W. 10. In the body of the dying declaration we only find the signature of p. W. 9. After that, there is an endorsement of the Tehsildar that the declarant was in the state of senses and was fully aware of what he had stated. It looks like that the tehsildar was present and the declaration was recorded by the Sub-Inspector and the tehsildar made only an endorsement that the patient was conscious. The contents of ex. P. 19 are completely at variance of the deposition of P. W. 10 when he says that he recorded the dying declaration. That apart, in a case of this nature, particularly when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. These are some of the important requirements which have to be observed. In the instant case, as noted above, there is no other evidence against the appellant except this dying declaration which is of highly doubtful nature. In our view, the learned Sessions Judge has given the good reasons for acquitting the accused and the view taken by him is quite reasonable and there is no good ground for reversing the same by the Court. " (14) MR. In our view, the learned Sessions Judge has given the good reasons for acquitting the accused and the view taken by him is quite reasonable and there is no good ground for reversing the same by the Court. " (14) MR. Goswami, the learned Public prosecutor appearing for the State disputed the submissions of Mr. Mukherjee. Speaking for ourselves we have not been impressed by the submission of Mr. Mukherjee that the statement of the victim recorded by the P. W. 17 is a suspicious document. The chain of events, commencing from the time when the victim was shot at, has already been narrated by us. The statement of the victim marked Ext. 3 is preceded. by Ext. 9 which is a G. D. Entry recorded by the P. W. 17 at 3. 10 hours on 16th May, 1995 which we already have set noticed hereinabove. The contents of Exhibit 9 and the contents of ext. 3 are same and identical in all material particulars. The information received by the p. W. 17 in the police station within less than an hour of occurrence of the incident, before there was any scope for deliberation or concoction has the added advantage of res geste recognised by the Evidence Act under section 6 thereof which reads as follows :- "relevancy of facts forming part of some transaction - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. (a) A is accused of the murder of B by beating him. Whatever was said or done by a or B or the by-standers at the beating, or so shortly before or after it has to form part of the transaction, is a relevant fact. " The time and place of recording the statement of the victim, marked Ext. 3, can be ascertained from the evidence of the P. W. 17 who recorded the statement. According to him, the statement was recorded on 16th may, 1995 at 4. 25 a. m. in the Cardiothorasic unit. This also takes care of the doubt entertained by Mr. Mukherjee as regards presence of P. W. 6 Dr. Ghosh while the statement of the victim was recorded. According to him, the statement was recorded on 16th may, 1995 at 4. 25 a. m. in the Cardiothorasic unit. This also takes care of the doubt entertained by Mr. Mukherjee as regards presence of P. W. 6 Dr. Ghosh while the statement of the victim was recorded. What lends further assurance to the Court is the fact that the statement of the victim was treated as the written complaint and on that basis a formal F. I. R. was drawn and the same was produced to the concerned Magistrate and the same has been signed by him on 16th may, 1995 itself. It is not also a fact that the statement of the victim contains any interpolations. By giving arrow marks at two places two words have been added. Those two words are "single" and "fire Arm". These two words, even if we accept the submission of Mr. Mukherjee that they were subsequently added, do not detract from rest of the contents of the statement. If these two words are taken out still the statement would remain intelligible and capable of giving definite information as regards the Involvement of the appellant. The submission that the whole case is based on the statement of the victim marked Exhibit 3 is also not correct. We have other pieces of evidence which we have already narrated hereinabove and need not reiterate. The judgment in the case of moniram (1994 Cri LJ 946) (SC) (supra) cited by Mr. Mukherjee does not really apply to the facts and circumstances of this case. In the case before their Lordships the learned trial Judge had recorded a finding of acquittal which is not the case here. The signature of the deceased was not there in the dying declaration but in the present case the signature of the deceased is there. In the case before their Lordships the dying declaration was not recorded in the presence of a doctor. But in the case before us, the dying declaration was recorded in the presence of the P. W. 6 Dr. Ghosh. It is true that there is no certificate given in the exhibit itself to indicate that the declarant was conscious and in his senses. But the fact that the statement was recorded in the presence of the Doctor presupposes that the patient was conscious and in his senses. Ghosh. It is true that there is no certificate given in the exhibit itself to indicate that the declarant was conscious and in his senses. But the fact that the statement was recorded in the presence of the Doctor presupposes that the patient was conscious and in his senses. At the highest we may be inclined to look for corroboration of the statement of the victim. We may not be inclined to affirm the conviction solely on the basis of the Exhibit 3. We already have indicated that the contents of the Exhibit 3 and the contents of the Exhibit 9 are one and are same in all material particulars. The contents of the exhibit 3 have been corroborated by the evidence of the P. W. 10. The three witnesses namely P. Ws. 1, 2 and 3, who turned hostile, refused to divulge the name of the assailant but admitted the fact that the victim was with them when he was shot at. This also goes to corroborate at least partly the contents of the Exhibit 3. Lastly, it was contended by Mr. Mukherjee on this aspect of the matter that according to the P. W. 10 and the P. W. 11 the patient was senseless in the taxi on the way to the hospital. P. W. 10 has indeed deposed that the victim was senseless in the taxi but the P. W. 11 deposed that on the way to the hospital the victim had no ability to speak. It is possible that the P. W. 10 the father finding the victim not speaking any more inferred that the victim had become senseless. But the inability to speak on the way to the hospital does not go to establish that the victim could not have made the statement in the hospital. In the hospital the patient is likely to have been administered medicine and the fact that the doctor (P. W. 6) has deposed that in his presence the victim made the statement lends assurance to the Court that the victim did, in fact, make the statement. (15) For the aforesaid reasons, the first submission of Mr. Mukherjee is rejected. (16) The second submission advanced by mr. Mukherjee is in connection with the place of occurrence. He relied on the injury report which is an unexhibited document. (15) For the aforesaid reasons, the first submission of Mr. Mukherjee is rejected. (16) The second submission advanced by mr. Mukherjee is in connection with the place of occurrence. He relied on the injury report which is an unexhibited document. He submitted that according to the injury report the place of occurrence was G-412 dhankheti. From Exbt. 3, the statement of the victim, it appears that the place of occurrence is 180, Shyamlal Lane whereas p. W. 3 deposed that the occurrence took place on G-181 Shyamlal Lane. Mr. Mukherjee submitted that there is utter uncertainty as to the place where the incident took place which strikes the case of the prosecution at the root. We have not been impressed by this submission of Mr. Mukherjee either. We already have indicated that the P. Ws. 1, 2 and 3 are eyewitnesses. They were playing dominos (a game of cards) and the victim was sitting with them. (17) P. W. 2, who subsequently became hostile, deposed that the incident took place in his house. P. W. 1 another hostile witness deposed that the incident took place in one of the rooms in the house of Hara. P. W. 3 clarified that Hara was the landlord of the house in which Halim (P. W. 2) was a tenant. Halim (P. W. 2) deposed that, incident took place in his house. The fact that the P. W. 2 halim has a factory in his house has been admitted by the defence by the following suggestions to the P. W. 10 :- "not a fact that no incident took place at that hour in the factory of Halim or that he was not gunned down in Halim's factory. " (18) P. W. 17 has deposed that stains of blood were found in the varandah of the kite factory of Sk. Halim (P. W. 2) from where the sample of blood was collected and seized vide exbt. 1. He also deposed that Dhanketi bustee was located in the Shyamlal Lane. In the injury report relied upon by Mr. Mukherjee the incident is stated to have taken place in the Kite Factory, which we have evidence before us to show, belonged to Halim (P. W. 2). P. W. 2 deposed that incident took place in his house. There is, therefore, no substance in the submission that the place of occurrence is uncertain. Mr. Mukherjee the incident is stated to have taken place in the Kite Factory, which we have evidence before us to show, belonged to Halim (P. W. 2). P. W. 2 deposed that incident took place in his house. There is, therefore, no substance in the submission that the place of occurrence is uncertain. Mr. Mukherjee lastly added on this point that the victim ran for life from 180-181 Shyamlal Lane to his residence and therefore, trail of blood should have been there. (19) We can only say that this line of enquiry was not pursued when the investigating officer was in the box. This submission is not of much importance for the simple reason that we have overwhelming evidence before us to show that the victim was taken to the hospital by no other than the P. W. 10, his father. P. W. 11 has corroborated that fact. There is, therefore, adequate assurance to the Court that the victim ran from the place of occurrence and informed his father and thereafter, his father took him to the sslm Hospital. (20) For the aforesaid reasons, the second submission of Mr. Mukherjee is also rejected. The third submission advanced by mr. Mukherjee related to the incident itself. (21) The first submission in that regard was that the name of the assailant was not disclosed to the P. W. 11. We have already seen from the evidence of the P. W. 11 that his assistance was sought for by the P. W. 10 at 3. 10 a. m. on 16th May, 1995. We have unimpeachable evidence before us namely the G. D. Entry, Exbt. 9, recorded at 3. 10 hrs. indicating the name of the assailants. We are, therefore, unable to attach any importance to this part of the evidence of P. W. 11. (22) The second submission advanced by mr. Mukherjee in that regard was that no bullet was found from the body of the victim. We already have indicated the evidence of P. W. 5, who deposed that considering the critical condition of the patient, the quest for bullet could not be pursued. There is overwhelming evidence before us to show that the injury was caused by bullet. This appears from the injury report relied upon by Mr. Mukherjee although not an exhibit. This appears from the evidence of all the doctors including the autopsy surgeon. Mr. There is overwhelming evidence before us to show that the injury was caused by bullet. This appears from the injury report relied upon by Mr. Mukherjee although not an exhibit. This appears from the evidence of all the doctors including the autopsy surgeon. Mr. Mukherjee added that the bed-head ticket according to a seizure list dated 21st january, 1996 contained 23 pages but only one page was exhibited by the prosecution. He has drawn our attention to the unexhibited seizure list from the records of the lower court. Mr. Mukherjee wanted us to draw an adverse inference for omission on the part of the prosecution to tender all the 23 pages of the bed-head tickets. We are unable to accept this submission for more that one reasons. No cross-examination whatsoever on this aspect of the matter was made on behalf of the defence when the investigating officer was in the box. There is no suggestion brought to our notice by Mr. Mukherjee appearing to have been given on behalf of the defence to the witnesses of the prosecution that the bed-head ticket in its entirety had not been tendered. (23) The treatment sheet marked Exbt. 7 was tendered by Dr. Pinaki Chatterjee (P. W. 19). Only question put in the cross-examination of Dr. Chatterjee (P. W. 19) is as follows :-"the treatment sheet recorded by me does not reflect any gun shot injury. " (24) We are inclined to think that this submission made before us is by way of an afterthought. During the trial, no grievance was made that the treatment sheet in its entirety was not exhibited. One possible reason why all the treatment sheets could not be tendered might be that all the doctors who might have occasion to make the recordings therein were not readily available. The prayer for drawing an adverse inference is misconceived, to say the least. The next submission made by Mr. Mukherjee was that Dr. D. N. Mondal who prepared the injury report has not been examined. This submission of Mr. Mukherjee itself explains why the injury report was not exhibited. Dr. Mondal in all possibility could not be found and that was the reason why the injury report could not be exhibited. Mr. Mukherjee has relied on the injury report and we have considered the same and there is, therefore, no further scope for any further grievance. Mukherjee itself explains why the injury report was not exhibited. Dr. Mondal in all possibility could not be found and that was the reason why the injury report could not be exhibited. Mr. Mukherjee has relied on the injury report and we have considered the same and there is, therefore, no further scope for any further grievance. Lastly, it was submitted by mr. Mukherjee that the wearing apparels of the victim were not seized. It is also an incorrect submission factually. The wearing apparels of the victim were seized by the police from the custody of the Wardmaster, p. W. 16, vide Exbt. 4. (25) ALL the submissions advanced by Mr. Mukherjee have been dealt with by us and we have not found any substance in any one of them which may persuade us to take a view contrary to that taken by the learned trial Judge. (26) We are, under the circumstances, unable to interfere with the judgment and the order under challenge. The appeal, in the result, fails and the same is dismissed. (27) We are told by Mr. Biswajit Manna, learned Advocate, for the appellant, that the appellant is in jail. He is directed to serve out the sentence as awarded by the learned trial Court. (28) The Criminal section of this Court is directed to send the lower Court records and a copy of this judgment to the concerned learned trial Court for information and necessary action. Let urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Counsel, for the parties, upon compliance of all usual formalities. I agree. Appeal dismissed.