JUDGMENT Talukdar, J. 1. ONCE upon a time there lived in the City of Joy, a soul, who pledged his mortal frame to the battery of assault before a group of revelers when he had sought to prevent their onslaught on a damsel in distress, whom, they had zeroed on after trailing her two wheeler. 2. SHE has lived to ruminate the trauma of the said night and to silently mourn the sacrifice of the brave heart, who became deathless. It is not the WHY; but it is HOW the life of the said Soul ebbed away, would be our logjam in this Appeal. 3. FOR this purpose, we have to walk Down Time Lane until we reach the venue of death (Ext. 1 as prepared by P.W.1, Santanu Basu, Assistant Sute-Inspector of Police attached to Detective Department, Lalbazar) at the wee hours of a New Year's Eve night of 2003. 4. FROM the shadow of death, we will retrace to the hub of life to make a foray in the entire Matter. Bapi Sen, a young Police Officer of Calcutta Police decided to celebrate New Year's Eve with his friends. He accompanied P.W.3, Ashoke Sengupta, P.W. 4, Goutam Majumdar, P.W.6, Nazibul Hossain Mollah, P.W.7., Kanai Krishna Kundu (Tendered) to the residence of P.W.5., Subrata Basu in a vehicle driven by P.W.3, Ashoke Sengupta. 5. AFTER having dinner at the Place of P.W.5, Subrata Basu, the group decided to observe the lights and festivities in Park Street, the hub of City's New Year gaiety. 6. AFTER having celebrated the New Year in their own way in the vicinity of Park Street, to avoid traffic they chose Rati Ahmed Kidwai Road and while they were on Nirmal Chandra Street, they noticed a Taxi with five occupants trailing a Motorcycle with a female pillion rider, who was their target of tease. Bapi Sen, for whom it was the last ride together with his friends (P.W.4, Goutam Majumdar, P.W.S.Subrata Basu, P.W.6, Nazibul Hossain Mollah and P.W.7, Kangi Krishna Kundu) felt it was his bounden duty to interfere and rescue the helpless Lady from the clutches of the occupants of the Taxi. 7. SEEING the Motorcycle coming to a screeching halt near Hind Cinema and the occupants of the Taxi disembarking therefrom and trying to molest the Lady, Bapi Sen intervened. 8. 7. SEEING the Motorcycle coming to a screeching halt near Hind Cinema and the occupants of the Taxi disembarking therefrom and trying to molest the Lady, Bapi Sen intervened. 8. WHILE it scripted the closing chapter of Bapi Sen's life, it was the prologue of the Prosecution case, which, we are required to track in this Appeal. Due to systematic assault by the occupants of the said Taxi with fists and blows, he fell down on the Tram line. Even though his friends sought to intervene, they could not succeed and in the meanwhile, the Motorcyclist along with the pillion rider left the scene and sometimes thereafter, occupants of the said Taxi boarded the same and also made good their escape. The number of the Taxi was noted down by the friends of Bapi Sen and after he was found unconscious lying on the road, he was shifted to Calcutta Medical College and Hospital for treatment, where he was admitted. 9. IMMEDIATELY, after being shifted to the Hospital, Bapi Sen was admitted, as his condition was found to be critical. Dr. Prasanta Kr. Biswas (since Deceased), Emergency Medical Officer prepared the Injury Report (Ext.54), whose hand writing was proved by P.W.32, Dr. Avijit Kr. Biswas, in - the Casualty Block. 10. P.W.39, Brajo Keshab Chowdhury, Assistant Sub-Inspector of Police attached to the Section- 'H' Outpost of the Calcutta Medical College and Hospital on coming to know about Bapi Sen being a Police personnel helped the party in the process of his treatment and scan etc. He rang up the Police Station informing about the incident, when he was told that already the Officer concerned had left for the Place, Subsequently, after receiving the information with regard to the incident, the Officer-in-Charge of the Traffic Guard, Tollygunge, P.W.24, Amit Bandopadhyay, under whom Bapi Sen worked, also arrived at the said Hospital followed by first Investigating Officer, P.W.40, Rakshakar Mondal of Section- 'H' Police Station. 11. SINCE the condition of Bapi Sen was not favourable, he was advised removal to any other Hospital. Accordingly, after his Brother P.W.15, Anup Kumar Sen arrived, he was discharged from the said Hospital on the strength of the Discharge Certificate (Ext. 5) proved by P.W.35, Dr. Krishnendu Maity, who also.proved the Admission Record (Ext.55) and was shifted to a Private Hospital. 12. Accordingly, after his Brother P.W.15, Anup Kumar Sen arrived, he was discharged from the said Hospital on the strength of the Discharge Certificate (Ext. 5) proved by P.W.35, Dr. Krishnendu Maity, who also.proved the Admission Record (Ext.55) and was shifted to a Private Hospital. 12. THE Statement (Ext.4) made by P.W.3, Ashoke Sengupta was reduced into writing by P.W.40, Rakshakar Mondal as the formal F.I.R. (Ext.76) giving rise to Section-'H' Police Station Case No. 1 dated 01.01.2003. P.W.3, Ashoke Sengupta gave description of their drive down the Place of Occurrence when they had noticed a lady on a Motorcycle followed by a Taxi. After the Motorcycle had stopped, the occupants of the Taxi tried to jostle with the said Lady and while Bapi Sen tried to intervene, he was mercilessly assaulted by the occupants of the said Taxi, which resulted in his injury and further description of the incident that even after he had fallen down, Bapi Sen was still assaulted by the said occupants. Even though it was disclosed that he was a Police Personnel, it was countered by the said occupants that they were also Police personnel. 13. BAPI Sen,: who was unconscious, was removed to the Medical College and Hospital in his car. 14. P.W.40, Rakshakar Mondal of the Section-'H' Police Station took up the investigation in terms of the directions of his Superior Officer, after having recorded the formal F.I.R. (Ext.76). P.W. 40, Rakshakar "Mondal went to the Casualty Block of the Medical College and Hospital and found Bapi Sen in an injured condition. He thereafter went to the Place of Occurrence being accompanied by P.W.3, Ashoke Sengupta in his vehicle. 15. AFTER Bapi Sen was removed from the said Hospital to a private institution, he came back to the Police Station at the early hours and recorded the formal F.I.R. (Ext.76). 16. HE, thereafter, proceeded with the investigation and tracked the Taxi, which belonged to P.W. 10, Madhu Kanta Jha. After locating P.W. 10, Madhu Kanta Jha, who stated that he had taken the Appellants in his Taxi on the previous night, he also met P.W.11, Mewalal Gupta, Driver of the Taxi. He secured the arrest of Appellants Madhu Sudan Chakraborty @ Madhu and Pijush Goswami @ Gopal after being identified by P.W.10, Madhu Kanta Jha at the Police Station. After locating P.W. 10, Madhu Kanta Jha, who stated that he had taken the Appellants in his Taxi on the previous night, he also met P.W.11, Mewalal Gupta, Driver of the Taxi. He secured the arrest of Appellants Madhu Sudan Chakraborty @ Madhu and Pijush Goswami @ Gopal after being identified by P.W.10, Madhu Kanta Jha at the Police Station. Sridam Bauri, Mujibar Rahaman and Sekhar Bhusan Mitra surrendered before the learned Chief Metropolitan Magistrate, Calcutta. 17. HE effected seizure in respect of the Duty Register of the Appellants concerned and received the Death Certificate (Ext. 56). 18. P.W.37, Ashok Kr. Mishra of Section-V Police Station, held the Inquest in the presence of P.W.15, Anup Kumar Sen, Brother and P.W.16, Ritwik Sarkar, Brother-in-Law of Deceased Bapi Sen respectively. The Inquest Report prepared by P.W. 37. Ashok Kr. Mishra was marked as Ext. 14. P.W. 41, Atanu Banerjee, attached to the Homicide Section of Detective Department, took up the investigation and on completion thereof, submitted Charge Sheet on 10.3.2003. He placed all the Appellants in the Test Identification Parade in the Presidency Jail held by P.W. 28, Debasish Bandyopadhyay, Metropolitan Magistrate on 21.01.2003 and 28:01.2003. 19. PURSUANT to the Charge Sheet submitted by P.W. 41, Atanu Banerjee, the Appellants hereinabove were arrayed in Sessions Trial No. 1 of May 2003 before the learned XIITH Bench of the City Sessions Court, Calcutta to answer the following Charge: "Firstly- That you in between the night of 31.12.02 and 1/1/2003 at about 1-30 AM. at Nirmal Chandra Street, Kolkata near Hind Cinema within the jurisdiction of Bowbazar Police Station, in furtherance of common intention of you all did commit murder by intentionally and/or knowingly causing the death of one Sgt. Bapi Sen of Calcutta Police and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code and within the cognizance of this Court of Sessions." "Secondly- That you, on or about the time, date and place mentioned in count No. one above, in furtherance of the common intention of you ail, did use criminal force to one woman who was sitting on the rear seat of a motor cycle coming from South to North along Nirmal Chandra Street, Kolkata, intending to outrage the modesty of that lady and thereby committed an offence punishable under Section 354/34 of the Indian Penal Code and within the cognizance of this Court of Sessions." 20. IN order to have a better grasp of the entire Prosecution case, it would be profitable to trace the outline of the various witnesses examined by the Prosecution in support of its case. We would categorize them in their individual heads ; The Eve Witness. P.W.3, Ashoke Sengupta P.W.4, Goutam Majumdar P.W.5, Subrata Basu P.W.6, Nazibul Hossain Mollah and P.W.7, Kanai Krishna Kundu (tendered) and P.W.8, Ganesh Banik and P.W.9, Samir Ghosh on a different perspective. P.W,1, Santanu Basu, Assistant Sub-Inspector of Police, Detective Department, Lalbazar, prepared the Sketch Map (Ext.l). 21. P.W.2, Swapan Saha, Sub-Inspector of Police, Detective Department, Lalbazar, took Photograph (Ext.2) of Deceased Bapi Sen in the Private Hospital. 22. P.W. 18,Narayan Ch.Mallick,Constable,Calcutta Police.attached to Section-'V Police Station. He identified the dead body to the Autopsy Surgeon, P.W. 36, Dr. Uma Prosanna Ghosal and also before P.W.2, Swapan Saha for the purpose of Photograph (Ext.2). P.W.19, Chanchal Kr. Chatterjee, Officer-in-Charge, Reserve Force, proved the Movement Register (Ext,25). 23. P.W.20, Subodh Ch. Mondal, Head Constable, attached to 'B' Company of Reserve Force. His cross examination was declined. 24. P.W.22, Pankaj Kr. Misra, Inspector, attached to 'D' Company of Reserve Force. On 05/01/2003 the Duty Register, Command Certificate, Movement Register and General Diary were seized on the basis of the Seizure List (Ext.36) in the presence of P.W.23, Jagadish Prasad Misra, whose cross examination was declined. P.W.23, Jagadish Prosad Misra, Constable attached to 'D' Company of Reserve Force witnesses the seizure of the Duty Register, Command Certificate, Movement Register and General Diary. 25. P.W,24, Amit Bandopadhyay, Officer-in-Charge, Traffic Guard, Tollygunge. The Deceased Bapi Sen worked under him. On the fateful day after having received the information with regard to the incident from the Control Room, he rushed to Calcutta Medical College and Hospital where he met P.W.3, Ashoke Sengupta, P.W.4, Goutam Majumdar, P.W.5, Subrata Basu and P.W.6, Nazibul Hossain Mollah and heard about the incident. 26. HE also interacted with the Physician, who was treating Bapi Sen at the said Hospital, who ad vised to transfer the injured Bapi Sen to a particular Private Hospital. Soon thereafter, the Elder Brother of Bapi Sen, P.W.15, Anup Kumar Sen also arrived and alter taking a decision in this regard, Bapi Sen was shifted to the said Private Hospital. P.W.26, Laghia Murmu, Constable, Reserve Force ('D* Company) proved the Duty Register (Ext.41) in respect of the Appellant Sridam Bauri. 27. P.W.27, Md. Soon thereafter, the Elder Brother of Bapi Sen, P.W.15, Anup Kumar Sen also arrived and alter taking a decision in this regard, Bapi Sen was shifted to the said Private Hospital. P.W.26, Laghia Murmu, Constable, Reserve Force ('D* Company) proved the Duty Register (Ext.41) in respect of the Appellant Sridam Bauri. 27. P.W.27, Md. Abu Bakkar Siddique, Constable Reserve Force, attached to 'B' Company. He proved the Duty Register (Ext.26) in respect of Appellant Pijush Goswami, Mujibar Rahman and Madhusudan Chakraborty. 28. P.W,37, Ashok Kr. Mishra of Section-'V' Police Station held the Inquest (Ext. 14). P.W.40, Rakshakar Mondal, Investigating Officer, Section-'H' Police Station, was the first Investigating Officer, who, in terms of the G.D. Entry (Ext.74) had came to the Medical College and Hospital, Calcutta and took down the Statement (Ext.4) of P.W.3, Ashoke Sengupta, which, on his return to the Section-'H' Police Station, had reduced it into the formal F.I.R. (Ext. 6). 29. HE also conducted a substantial part of the investigation. He secured the arrest of Appellant Pijush Gpswami and Madhusudan Chakraborty. 30. HE also tracked down the offending Taxi, which was owned by P.W. 10, Madhu Kanta Jha and interrogated the Driver P.W. 11, Mewalal Gupta. P.W.41, Atanu Banerjee, Homicide Section of Detective Department, took over the investigation from his predecessor on 06/01/2003 and submitted the Charge Sheet on 07/03/2003. P.W. 29, Dr. Anup Kr. Sadhu, a Radiologist of a Scan Centre in Calcutta Medical College and Hospital held C.T. Scan on Bapi Sen at the time of his admission. 31. P,W.36,Dr. Uma Prosanna Ghosal, Assistant to Chief Medical Officer, Alipore, held the Post Mortem Examination on the dead body of Bapi Sen. 32. P.W.35, Pr. Krishnendu Maity, a Post Graduate Trainee in the Calcutta Medical College and Hospital proved the Admission Record (Ext.55) and the Discharge Certificate (Ext.5) in respect of Bapi Sen. P.W.32, Dr. Avijit Kr. Biswas, Emergency Medical Officer of the said Hospital proved the Injury Report (Ext.54) prepared by Late Dr. Prasanta Biswas. 33. P.W.38, Dr. Ajay Kumar Gupta, Professor and Head of the Department of Forensic and State Medicine of the Calcutta Medical College and Hospital gave his opinion (Ext.73) on the autopsy being referred to by P.W.41, Atanu Banerjee whereas; P.W.30, Dr. Bani Brata Nath, Emergency Medical .Officer; P.W.31, Dr. Vijay Gupta ; Radiologist P.W.33, Dr. Prasanta Biswas. 33. P.W.38, Dr. Ajay Kumar Gupta, Professor and Head of the Department of Forensic and State Medicine of the Calcutta Medical College and Hospital gave his opinion (Ext.73) on the autopsy being referred to by P.W.41, Atanu Banerjee whereas; P.W.30, Dr. Bani Brata Nath, Emergency Medical .Officer; P.W.31, Dr. Vijay Gupta ; Radiologist P.W.33, Dr. Umesh Singh, proved the Death Certificate (Ex.56) and ; (2010)1 C Cr LR (Cal) Madhusudan Chakraborty v. State of West Bengal 731 34. P.W.34, Dr. Ajoy Agarwal, Neuro Surgeon all belonged to the Private Hospital where Bapi Sen breathed his last. P.W.10, Madhu Kanta Jha, Owner of the Taxi, which transported the Appellants. 35. P.W.11, Mewalal Gupta, helper of the same at the relevant point of time. 36. P.W.15, Anup Kumar Sen, Brother and ; P.W.16, Ritwik Sarkar, Brother-in-Law. Staff of the Private Hospital and the Medical College and Hospital Calcutta respectively. P.W. 14, Rajib Sharma, Record Keeper and ; P.W. 21, Tapas Guha, Lower Division Clerk/Record Keeper. Inconsequential Witnesses 37. P.W. 17, Debashish Some and ; P.W.20, Subodh Ch. Mondal, 38. P.W.28, Debasish Bandyopadhyay, Metropolitan Magistrate. P.W. 12, GopalShyam Gupta, engaged both, P.W.8, Ganesh Banik and P.W.9, Samir Ghosh in their Association and P.W.25, Baidya Nath Chatterjee was the Manager of Scotland Security Agency, which employed P.W.8, Ganesh Banik and P.W. 9, Samir Ghosh. 39. P.W. 13, Asik Kr. Bhattacharyya, Deputy Manager, System Control Department of Calcutta Electric Supply Corporation Ltd., proved through his Letter (Ext, 10) that there was no interruption of power supply in the vicinity on the relevant date. 40. AT the Appellants pleaded not guilty to their respective Charges "before the learned XII Bench of the City Sessions Court, Calcutta in connection with Sessions Trial No, 1 of May 2003. It was their Defence case that the incident did not take place in the manner as have been described by the Prosecution, on the contrary Deceased Bapi Sen, who was tipsy, sought to grab the Driver of the Taxi but as the same sped away, he fell down on the Tram line and sustained injuries, as noticed by the Autopsy Surgeon. 41. 41. ON conclusion of the Trial, learned XII Bench of the City Sessions Court, Calcutta found the Prosecution has been able to bring home both the Charges against all the Appellants successfully and accordingly sentenced each of them to suffer Imprisonment for life and to pay a fine of Rupees Ten Thousand each; "in default; to suffer further Imprisonment for one year in respect of their Conviction under Section 302/34 of the Indian Penal Code. 42. THEY were also directed to suffer six months Simple Imprisonment after having been found guilty in respect of the Charge of Section 354/34 of the Indian Penal Code, As we have found, there are two separate Appeals filed by the Appellants being Criminal Appeal No. 537 of 2004 (Madhu Sudan Chakraborty @ Madhu and Ors. v. State of West Bengal) and Criminal Appeal No. 538 of 2004 (Pijush Goswami and Anr. v. The State of West Bengal} but both these Appeals were heard together, and as such are being disposed of by this common Judgment which will govern the fate of either of these Appeals. 43. SHRI Basu, learned Counsel in support of the Appeal, after relying on a short Note of Submission focussed on the following points :- SHRI Basu wondered that the genesis of the Prosecution case, was not inspiring confidence. Since the Deceased Bapi Sen and his friends had hailed from the Southern part of the City," then it is not understood how, after observing the festivities, they would proceed towards the North although it is borne out from the evidence that they were preparing to go home. 44. SHRI Basu sought to create a hole in the ocular evidence of P.W.3, Ashoke Sengupta, P.W.4., Goutam Majumdar, P.W.5, Subrata Basu and P.W.6, Nazibul Hossain Mollah to establish his case that in view of the discrepancies in the same with regard to the gamut of assault, it rendered their evidence as Untrustworthy. Omission on their parr to stick to their earlier statements, according to SHRI Basu, relegated them to the status of unreliable witness. Shri Basu also placed heavy reliance on Ext.B prepared by the Emergency Ward of the Calcutta Medical College and Hospital, Calcutta. Omission on their parr to stick to their earlier statements, according to SHRI Basu, relegated them to the status of unreliable witness. Shri Basu also placed heavy reliance on Ext.B prepared by the Emergency Ward of the Calcutta Medical College and Hospital, Calcutta. Firstly, Shri Basu submitted, failure on the part of the Prosecution to bring the same on Record, gives rise to an adverse presumption against the Prosecution ; Secondly, as indicated therein, Bapi Sen had consumed two pegs of alcohol. Relying on the same, Shri Basu was of the view that in view,of the fact that the stomach contents of Deceased Bapi Sen contained Alcohol-so, it can be easily gathered that he was in a drunken state and as he tried to intercept the Taxi and P.W.11, Mewalal Gupta chose to drive away, as suggested by the Defence, after having fallen down on the Tram line, he received injuries as noticed by the Autopsy Surgeon. He stressed very heavily on the said document to illustrate his point that in fact the same, totally robs the fervour of the Prosecution case with regard to their description of the incident, in the manner, which they have sought to establish. 45. FURTHERMORE, Shri Basu submitted that although the entire set of Appellants were in Custody by 02/01/2003, the delay in holding the T.I. Parade is absolutely unexplainable and the Prosecution could not meet the said point. He relied on the decisions of the Supreme Court in 1) Hasib v. The State of Bihar, AIR 1972 SC 283 ; 2) Subash and Shiv Sankar v. State of UP.,. AIR 1987 SC 1222 and 3) Rajesh Gobind Jagesha v. State of Maharashtra, 2000 Cr LJ 380 on the proposition of delay in holding Test Identification Parade. Shri Basu doubted the veracity of the F.I.R.(Ext.76) with regard to the time and manner in which it was recorded and was of the view that considering the fall out of Ext.-'F'-it was hit by Section 162, Cr.P.C. as there were severe incongruities existing between each of the said documents. On a different plank Shri Basu stressed the fact that at the time of his admission, Bapi Sen was otherwise hail and hearty. On a different plank Shri Basu stressed the fact that at the time of his admission, Bapi Sen was otherwise hail and hearty. The injuries detected by the Medical Evidence shows that he was hit only on the right side of his head, although the ocular evidence shows there was random assault., Not only it impeached the ocular version to a certain extent but Shri Basu was of the view that as the entire incident was a result of a fit of anger and in the absence of any previous enmity-the offence would not fall squarely within the ambit of Section 302 of the Indian Penal Code. He has sought to whittle down the same to a lesser Charge on the strength of the decisions of Supreme Court in A) Shankar Diwal Wadu v. State of Maharashtra, (2007)2 Supreme 1032 ; B) Hafiz v. State of U.P., (2005)6 Supreme 747 ; C) Sunder Lal v. State of Rajasthan, (2007)10 SCC 371 and D) Hem Raj v. The State (Delhi Administration), AIR 1990 SC 2252 . Summing up, Shri Basu has prayed for setting aside the Conviction on the score of 1) incongruities in the mainstay of the evidence and 2) the lack of credibility of P.W.8, Ganesh Banik and P.W.9, Samir Ghosh, who were chosen subsequently by the later Investigating Officer, P.W.41, Atanu Banerjee as well as 3) the startling issue that the lady, who formed the centrifugal question of the entire incident, remained elusive, PER CONTRA:: Learned Public Prosecutor in his own inimitable way chose to rebut the entire bundle of argument advanced by Shri Basu. Learned Public Prosecutor showed, in the fact situation the Deceased acted like a brave heart while others turned their eyes from an incident where a lady was in distress. He chose to intervene and fell prey to a group of assailants, who, although, were Police personnel-did not spare the Deceased even after being satisfied with his identity that he was also one of their compatriots- Learned Public Prosecutor viewed the entire Prosecution case from the angle that there is something more that it meets the eye. Deceased Bapi Sen was a symbol of protest. His sacrifice should not be viewed lightly by concentrating on minor incongruities and small pitfalls in the Prosecution case. Otherwise, according to the Learned Public Prosecutor, Justice would be rendered useless. 46. Deceased Bapi Sen was a symbol of protest. His sacrifice should not be viewed lightly by concentrating on minor incongruities and small pitfalls in the Prosecution case. Otherwise, according to the Learned Public Prosecutor, Justice would be rendered useless. 46. MEETING the argument of Shri Basu that the Prosecution did not prove Ext-.B i.e. the Admission Record containing details of the state of Bapi Sen's health at the Calcutta Medical College and Hospital, learned Public Prosecutor submitted that Ext.55 preceded by Ext.54, has the answer to such question. Learned Public Prosecutor discounted the contents of Ext.B and submitted it is not for the Doctors to say the actual measurement of Alcohol in the stomach of the Deceased without any stomach wash. 47. LEARNED Public Prosecutor submitted that it is required to see the evidence of P.W.38, Dr. Ajay Kr. Gupta, who categorically opined that "death was due to the cumulative effects of the injuries, due to the assault inflicted upon him." 48. LEARNED Public Prosecutor thereafter submitted that the Medical Evidence proved, it was a homicidal death. He thereafter submitted that the Place of Occurrence, identity of the Appellants and cause of death, all having been proved-there is little left for the Prosecution to prove its case. 49. LEARNED Public Prosecutor further argued, in view of the magnitude of the assault inflicted upon the Deceased by the Appellants, which have been noticed by the Autopsy Surgeon, P.W.36, Dr. Uma Prosanna Ghosal and P.W.' 38, Professor Ajay Kr. Gupta, the offence cannot be brought down to one under Section 304 of the Indian Penal Code: 50. HE has prayed for dismissing the Appeal. Discussion Gaining control over the whole hog of the entire issue, we find that of primordial importance, is the evidence of the Eye Witnesses. 51. THERE are two part witnesses; one, who accompanied Deceased Bapi Sen in his last ride together on the fateful night and in fact, were part of the sequence of events, which led to the death of Bapi Sen and his being shifted to the Calcutta Medical College and Hospital. In this category falls P.W.3, Ashoke Sengupta, P.W.4, Goutam Majumdar, P.W.6, Nazibul Hossain Mollah andP.W.7, Kanai Krishna Kundu (Tendered). 52. ON the second category, there is P.W.8, Ganesh Banik and P.W.9, Samir Ghosh, who are of subsidiary importance. In this category falls P.W.3, Ashoke Sengupta, P.W.4, Goutam Majumdar, P.W.6, Nazibul Hossain Mollah andP.W.7, Kanai Krishna Kundu (Tendered). 52. ON the second category, there is P.W.8, Ganesh Banik and P.W.9, Samir Ghosh, who are of subsidiary importance. They were Security Guards employed by the Association of P.W.12, Gopal Shyam Gupta from the Agency of P.W.25, Baidya Nath Chatterjee, Manager of the Security Agency. We will advert to the ocular evidence in two parts in closed details to trace the last hours of Deceased Bapi Sen so as to appreciate the role of the present Appellants in the same. 53. P.W.3, Ashok Sengupta, not only drove Bapi Sen on the fateful night to the spot but also in a way drove the last nail in the coffin of the Prosecution case. 54. AS we have seen earlier, he was the Author of F.I.R. (Ext. 76), his evidence shows that in the evening, he, along with P.W. 6, Nazibul Hossain Mollah, P.W. 7, Kanai Krishna Kundu (Tendered), P.W.4, Goutam Majumdar and P.W.5, Subrata Basu had been to Park Street for observing New Year's Night. Thereafter, when they were returning home via the Place of Occurrence, they had spotted a Motorcycle with a female on the pillion. A Taxi having five or six occupants teasing the said female, was trailing them. As soon as the Motorcycle stopped, all the occupants of the Taxi came down and started jostling with her. 55. THIS prompted Bapi Sen also to get down from the vehicle and intervene so as to release her from the clutches of the attackers, as a result of which he was assaulted with fists and blows on his face and he fell down. Even then he was not spared. The assault continued. In the meantime, while the Motorcycle sped away, he told the miscreants that the Deceased happens to be a personnel of the Calcutta Police. Once of them said that it hardly matters as they were also Police personnel. 56. SOMETIMES, thereafter they left in the Taxi, the number of which was noted down and thereafter Bapi Sen was shifted in an unconscious state to the Calcutta Medical College and Hospital. Once of them said that it hardly matters as they were also Police personnel. 56. SOMETIMES, thereafter they left in the Taxi, the number of which was noted down and thereafter Bapi Sen was shifted in an unconscious state to the Calcutta Medical College and Hospital. P.W.39, Brajo Keshab Chowdhury, an Assistant Sub-Inspector of Police manning the outpost of Section-'H' Police Station at the Medical College and Hospital at that point, was on his way to the Emergency, saw the Deceased being carted, who was said to be a Sergeant of Calcutta Police. Accordingly, he intervened and assisted P.W.3, Ashoke Sengupta for facilitating his treatment. 57. P.W. 3, Ashoke Sengupta, whose evidence, in fact, lays the basic structure of the Prosecution case, further stated that after admission, Bapi Sen's condition was found to be precarious and he was referred for C.T. Scan, which was done by P.W.29, Dr. Anup Kr. Sadhu. He was met by P.W.40, Rakshakar Mondal from Section -'H' Police Station, with whom he accompanied to the Place of Occurrence and on returning therefrom he found the Elder Brother of Bapi Sen, P.W.15, Anup Kumar Sen and P.W. 16, Ritwik Sarkar, his Brother-ln-Law present. 58. IMMEDIATELY, thereafter, he also found P.W.24, Amit Bandopadhyay, the Officer-in-Charge of the Traffic Guard, cinder whom Bapi Sen served, also arrived and realising that the condition of Bapi Sen was critical, they decided to shift him to a Private Hospital after obtaining the Discharge Certificate (Ext.5) issued by P.W.35, Dr. Krishnendu Maity. He identified all the miscreants before the Metropolitan Magistrate, P.W.28, Debasish Badyopadhyay at the Presidency Jail on 28/01/2003. x x x x x x x x x x x x 59. AFTER having apprised ourselves with the evidence of the lead witness of the Prosecution case, we will now switch over to the other associated ocular evidence. 60. P.W.4, Goutam Majumdar, P.W.5, Subrata Basu and P.W.6, Nazibul Hossain Mollah were also passengers in the same vehicle in Which Bapi Sen was being driven on the fateful night by P.W.3, Ashoke Sengupta. The initial factum of preparation for celebrating New Years Eve, as told by P.W.3, Ashoke Sengupta stands corroborated by P.W.4, Goutam Majumdar and P.W.6, Nazibul Hossain Mollah in toto. The initial factum of preparation for celebrating New Years Eve, as told by P.W.3, Ashoke Sengupta stands corroborated by P.W.4, Goutam Majumdar and P.W.6, Nazibul Hossain Mollah in toto. Invitation to the place of P.W.5, Subrata Basu, has also been spoken by them where they accompanied Bapi Sen on the same night and had their dinner and from the said place they proceeded towards Park Street lor observing New Year's Eve. 61. AS told by the prime evidence of P.W.3, AShoke Sengupta, we find that in a very tight fashion the sanctum sanctorum of the Prosecution case with regard to the offending Taxi owned by P.W.10, Madhu Kanta Jha and driven by P.W.11, Mewalal Gupta having on board the Appellants traifing the Motorcycle with the lady on the pillion and she being teased and as soon as the Motorcycle stopped and the occupants of the Taxi came out and started jostling with the said lady, which led to Bapi Sen intervening that ended in his being assaulted in the manner and fashion, which we have noted hereinabove - have been spoken uniformly. 62. EVIDENCE of P.W.3, Ashoke Sengupta shows that the Deceased was assaulted on his forehead, face and head. P.W.4, Goutam Majumdar has also echoed his version with regard to assault on the face of the Deceased. 63. THAT Bapi Sen was assaulted with fists and blows, have been spoken by P.W.4, Goutam Majumdar, P.W.5,Subrata Basu and P.W.6, Nazibul Hossain Mollah. THAT even after he slumped on account of the barrage of blows dealt upon him, he was still showered with blows, has been spoken by P.W.3, Ashoke Sengupta in his .Written Information (Ext.4), in his substantive evidence as aiso by P.W.6, Nazibul Hossain Mollah, P.W.8, Ganesh Banik and P.W.9, Samir Ghosh. Eye Witnesses of the second category also confirmed this part of the Prosecution case. 64. P.W.8, Ganesh Banik deposed that Bapi Sen was assaulted by fists and blows and such assault continued even after he fell down. P.W.9, Samir Ghosh also deposed that Appellants did not spare Bapi Sen and even when he fell down, the assault continued. 65. Eye Witnesses of the second category also confirmed this part of the Prosecution case. 64. P.W.8, Ganesh Banik deposed that Bapi Sen was assaulted by fists and blows and such assault continued even after he fell down. P.W.9, Samir Ghosh also deposed that Appellants did not spare Bapi Sen and even when he fell down, the assault continued. 65. IN our opinion the two part ocular evidence of P.W.3, Ashoke Sengupta, P.W.4, Goutam Majumdar, P.W.5, Subrata Basu and P.W.6, Nazibul Hossain Mollah (P.W.7, Kanai Krishna Kundu being Tendered) and the other view of P.W.8, Ganesh Barik and P.W.9, Samir Ghosh practically, clinches the Prosecution case in a neat fashion. 66. THE Eye Witnesses could not be substantially discredited even by way of vigorous cross examination. ********************** Now, we will proceed to the Medical Evidence. In this category of witnesses, we will, at the first instance, revert to the evidence of P.W.32, Dr. Avijit Kr. Biswas, who proved the hand writing of Late Dr. Prasanta Biswas, his erstwhile colleague in the Emergency Ward of the Calcutta Medical College and Hospital. 67. THE Injury Report(Ext.54), which was prepared by Late Dr. Biswas and the Bed Head Ticket{Ext.55) was also proved by him. 68. P.W.35, Dr. Krishnendu Maity, a Post Graduate Trainee at the Calcutta Medical College and Hospital was also a member of the team that treated Bapi Sen, proved Ext.55 with regard to the admission of Deceased Bapi Sen and the Discharge Certificate (Ext.55) prepared by him. Now, as we have found Bapi Sen was shifted to a Private Hospital, where the evidence of P.W. 30, Dr. Bani Brata Nath Shows he was admitted by this Elder Brother, P.W.15, Anup Kumar Sen, P.W.3, Ashoke Sengupta, P.W.6, Nazibul Hossain Mollah and P.W.4, Goutam Majumdar. 69. P.W.30, Dr. Bani Brala Nath, found, at the time of admission Bapi Sen to be unconscious. As such, he was admitted under P.W.34, Dr. Ajoy Agarwal, a Neuro Surgeon, who treated Bapi Sen till his death, proved the Treatment Sheets (Exts.66,67,68 etc.) with regard to the medical attention received by him. 70. P.W.31, Dr. Vijay Gupta, a Senior Radiologist of the said Private Hospital held the M.R.I. Examination (Ext.63) of the Deceased Bapi Sen. It would be of interest to refer to the evidence of P.W.29, Dr. Anup Kr. 70. P.W.31, Dr. Vijay Gupta, a Senior Radiologist of the said Private Hospital held the M.R.I. Examination (Ext.63) of the Deceased Bapi Sen. It would be of interest to refer to the evidence of P.W.29, Dr. Anup Kr. Sadhu, Radiologist of the C.T. Scan Center located at the Calcutta Medical College 85 Hospital and his findings (Ext. 19), which have clearly showed fracture and sub durable hemorrhage in the parietal region of the Deceased Bapi Sen with the injuries noted by them. 71. IT would be now required of us to visit the findings of P.W.36, Dr. Uma Prosanna Ghosal, the Assistant to the Chief Medical Officer, Alipore, who held the Post Mortem Examination on the body of Deceased being identified by P.W.18,Narayan Ch. Mallick, Constable, Calcutta Police attached to Section-V Police Station. 72. THE evidence of Autopsy Surgeon shows that he had noticed at least twenty two injuries and according to him........., The injuries especially the head Injuries as noted above are individually and collectively are sufficient to cause death in ordinary course of nature." P.W.36, Dr, Ghosal, was of the further opinion that the said ".........injuries as noted above may be caused by more than one person with the aid of hard and blunt substance, by lists and blows and kicks." 73. P.W.41, Atanu Banerjee, in his forensic investigative skill, thought it proper to obtain the opinion of an Expert in the field. Accordingly, he approached P.W.38, Professor Dr. Ajoy Kr. Gupta, Professor and Head of the Department of Forensic and State Medicine, Medical College and Hospital, Calcutta. 74. PROFESSOR Gupta on being approached by P.W.41, the later Investigating Officer after perusing the Death Certificate (Ext.56) issued by P.W.33, Dr. Umesh Singh of the Private Hospital showing severe head injury with associated polytrauma and associated multi organ failure, Injury Report (Ext.54), Autopsy Report (Ext. 72) and Inquest (Ext. 14) etc.-opined (Ext. 73) amongst other findings that "................Haematoma over brain stem. Umesh Singh of the Private Hospital showing severe head injury with associated polytrauma and associated multi organ failure, Injury Report (Ext.54), Autopsy Report (Ext. 72) and Inquest (Ext. 14) etc.-opined (Ext. 73) amongst other findings that "................Haematoma over brain stem. diffuse sub-dura/haemorrhage and contusion of brain, as noted bv the Autopsy Surgeon on the person of Bapi Sen were individually and collectively sufficient to cause death In ordinary course of nature, fissured fracture of skull and separation of suture of skull were also sufficient to cause death collectively in ordinary course of nature." Professor Gupta was of the further view that"............The injuries (abrasions) over dorsum(back) of hands is seen on the person of Bapi Sen in all probability resulted from his attempt to defend himself from the fists, blows and kicks of the assailants." 75. MARRYING off the ocular version of the Prosecution case with that of the Medical Evidence, particularly, those of the Autopsy Surgeon, P.W.36, Dr. Urna Prosanna Ghosal, P.W.38. Professor, Dr. Ajay Kr. Gupta, who was a man of great eminence in his field, we find that they are pan passu with each other. 76. MOVING ahead, after having followed the basic outline of the Prosecution case in the light of the ocular evidence beefed up by the evidence of the Autopsy Surgeon and other Medical Experts, we have been able to grasp of one part of the Prosecution case. It will be now important to revert to the evidence of P.W. 39, Brajo Keshab Chowdhury, who, we have already noticed in his capacity as an Assistant Sub-Inspector of Police, was manning the Section-'H' Outpost at the Medical College and Hospital. He noticed that Bapi Sen was being brought in an , injured condition. 77. HIS evidence discloses that after knowing about the identity of Bapi Sen, was a Police personal, he helped him with regard to the admission and the scan as advised by the Physician. 78. HE further deposed that P.W.40, Rakshakar Mondal, the first investigating Officer, after having coming to know about the incident, came to the said Hospital. HE also deposed that after taking the scan of the injured on the advice of the Physicians, the injured was shifted to the Private Hospital. HE also speaks about presence of P.W. 24, Amit Bandopadhyay, Officer-in- Charge of Traffic Guard under whom Bapi Sen worked. P.W. 39, Brajo Keshab Chowdhury, is a very important witness. HE also deposed that after taking the scan of the injured on the advice of the Physicians, the injured was shifted to the Private Hospital. HE also speaks about presence of P.W. 24, Amit Bandopadhyay, Officer-in- Charge of Traffic Guard under whom Bapi Sen worked. P.W. 39, Brajo Keshab Chowdhury, is a very important witness. In fact, it is he, who, set the bail rolling in the investigational procedure. It is in the curve of his evidence, we will proceed with the First Investigating Officer, P.W.40, Rakshakar Mondal. 79. THE evidence of the later shows that being routed by the Control Room, he arrived at the Calcutta Medical College and Hospital and met P.W.39, Brajo Keshab Chowdhury, who guided him to the Eyewitnesses P.W.3, Ashoke Sengupta, P.W.4, Goutam Majumdar, P.W.5, Subrata Basu, P.W.6, Nazibul Hossain Mollah and P.W.7, Kanai Krishna Kundu (Tendered). 80. P.W.40, Rakshakar Mondal, as we have found, visited the Place of Occurrence being accompanied by the Author of the First Information Report (Ext.76), P.W.3, Ashoke Sengupta and after having taken down his Statement (Ext.4), he reduced the same into a formal F.I.R. (Ext.76). Stepping aside, if we slightly digress for a moment, we would find that P.W.40, Rakshakar Mondal specifically averred that "street lights were on" at the Place of Occurrence. 81. WE would now be required to again retrace few steps to the ocular evidence where we would find P.W.4, Goutam Majumdar, P.W.5,Subrata Basu and P.W.6, Nazibul Hossain Mollah have categorically stated that street lights were on at the Place of Occurrence. Even the second category of the witnesses to the occurrence, (P.W.8, Ganesh Banik and P.W.9, Samir Ghosh) also spoke about street lights being on at the Place where the incident took place. 82. THIS would immediately, take us to the evidence of P.W.13, Asit Kumar Bhattacharyya, Deputy Manager, System Control Department of Calcutta Electric Supply Corporation Ltd., who, in his Report (Ext. 10) stated that there was no interruption in the power supply. Gaining this knowledge, we will straight hit the evidence of P.W.28 Debasish Bandopadhyay, learned Metropolitan Magistrate, 17th Court, Calcutta, who held the Test Identification Parade (Ext. 47) in respect of the appellants. 83. P.W.28, Debasish Bandyopadhyay, the Test Identification Parade Magistrate in his deposition has very clearly stated that he visited the Presidency Jail on 21.01.2003 in respect of Appellant Madhu Sudan Chakraborty, Pijush Goswami, Shekhar Bhusan Mitra and Sk. 47) in respect of the appellants. 83. P.W.28, Debasish Bandyopadhyay, the Test Identification Parade Magistrate in his deposition has very clearly stated that he visited the Presidency Jail on 21.01.2003 in respect of Appellant Madhu Sudan Chakraborty, Pijush Goswami, Shekhar Bhusan Mitra and Sk. Mujibar Rahman and all of whom were identified by P.W.4, Goutam Majumdar, P.W.6 Nazibul Hossain Mollah and P.W.7, Kanai Krishna Kundu (Tendered). 84. HE again, had been 1o the Presidency Jail on 28.01.2003 where the Appellants were identified by P.W.3, Ashoke Sengupta and P.W.5, Subrata Basu. The Report of the learned Magistrate were marked Ext. 47 and Ext. 48 respectively. In such view of the Matter, at once, it becomes clear that in view of the visual clarity the-identity of all the Appellants were established and they were pointed out in respect of their attributory role by the Eye Witness in relation to their dastardly act, which resulted in the cruel end of Deceased Bapi Sen. 85. AGAIN, if we revisit the investigation, we find that the same was transferred to the Detective Department from the Section-'H' Police Station on 07.01.2003, as a result P.W. 41 Atanu Banerjee came in seizin thereof. 86. AFTER assuming charge of investigation, P.W.41, Atanu Banerjee in the company of his predecessor visited the Place of Occurrence and on 08.01.2003 interrogated the Accused persons. It would be important to note that the evidence of P.W.40, Rakshakar Mondal would show that Appellant Sridam Bauri, Sk. Mujibar Rahman and Sekhar Bhusan Mitra surrendered before the learned Chief Metropolitan Magistrate, Calcutta on 02.01.2003. 87. NOW, on 09.01.2003, P.W.41, Atanu Banerjee forwarded the Accused before learned Chief Metropolitan Magistrate, Calcutta with a prayer for Police Remand and prayed for adding Section 302 since by that time Bapi Sen gave up his struggle at the Private Hospital in the hands of destiny. 88. HE also sought the opinion of P.W.38, Professor Dr. Ajay Kr. Gupta, Professor and Head of Forensic and State Medicine, Medical College and Hospital, Calcutta. Thereafter on 16.01.2003, he prayed for holding the Test Identification Parade before the learned Chief Metropolitan Magistrate, Calcutta. 89. HIS evidence further discloses "I tried my lebel best to have the presence of the lady who was subjected to tease as alleged but in vain and also her companion. The Commissioner of Police. Thereafter on 16.01.2003, he prayed for holding the Test Identification Parade before the learned Chief Metropolitan Magistrate, Calcutta. 89. HIS evidence further discloses "I tried my lebel best to have the presence of the lady who was subjected to tease as alleged but in vain and also her companion. The Commissioner of Police. Calcutta also published a news item in leading newspapers in the nature of appeal so that she can make herself available to the prosecution agency." 90. ON 10,03.2003 he submitted the Charge Sheet against all the Appellants. The line of evidence ranging from P.W. 26, Laghia Murmu, P.W. 27, Md. Abu Bakkar Siddique, P.W. 23, Jagadish Prosad Mishra, P.W. 22, Pankaj Kr. Misra and P.W. 20, Subodh Ch. Mondal with regard to the proof of Duty and Movement Registers of the different Appellants in their respective Companies of the Reserve Force illustrates their location at the time of occurrence. 91. THE evidence of P.W. 24, Amit Bandopadhyay, who was the immediate superior of the Deceased Bapi Sen fits in with the evidence of P.W. 39. A.S.I. Brajo Keshab Chowdhury with regard to his presence at the spot, which has also been spoken by the other Eye Witnesses including P.W. 15, Anup Kumar Sen, Elder Brother of Deceased Bapi Sen. 92. AFTER we have seen the ocular version of the Prosecution case read with the Medical Evidence and the basic super structure as woven by the investigational evidence, we will now see the auxiliary evidence collected by the Prosecution. P.W.14, Rajib Sharma, was the Record Keeper of the Private Hospital, who proved the Bed Head Ticket (Ext. 11), which only strengthens the case of the Prosecution with regard to the treatment Bapi Sen received in the said Hospital. 93. THIS has been backed up from the evidence of P.W.33, Dr. Umesh Singh, P.W.34, Dr. Ajoy Agarwal and P.W.30, Dr. Bani Brata Nath. 94. THE evidence of P.W.21, Tapas Guha, the Record Keeper of Calcutta Medical College and Hospital, who proved the Bed Head Ticket(Ext.29) of Bapi Sen in the light of the evidence of P.W.32, Dr. Avijit Biswas and P.W.35, Dr. Krishnendu Maity shows the initial steps in the Prosecution case leading to the injured Bapi Sen being shifted for his treatment after having received injuries in the manner described by the Eye Witnesses. Avijit Biswas and P.W.35, Dr. Krishnendu Maity shows the initial steps in the Prosecution case leading to the injured Bapi Sen being shifted for his treatment after having received injuries in the manner described by the Eye Witnesses. Even though P.W.16, Ritwik Sarkar, the Brother-in-Law of Deceased Bapi Sen did not speak anything substantial, the evidence of the Elder Brother of the victim, P.W.15, Anup Kumar Sen, in fact, forms a link evidence and has great persuasive value. 95. HE described the wearing apparels (Mat. Ext. I and II) Bapi Sen had, on the fateful date before he left for celebrating New Year's Eve which was seized on the strength of a Seizure List (Ext. 15) on 11.01.2003 by P.W.41, Atanu Banerjee in presence of P.W.15, Anup Kumar Sen, Elder Brother of the Deceased Bapi Sen and P.W.17, Debashish Some. 96. IN the early hours of the morning, after having heard about the incident and also having received another information from P.W.24, Amit Bandopadhyay, he rushed to the Calcutta Medical College and Hospital where he met P.W.24, Amit Bandopadhyay and a decision was taken that Bapi Sen would be shifted to a Private Hospital for treatment. The presence of P.W.15, Anup Kumar Sen , P.W.16, Ritwik Sarkar and P.W.24, Amit Bandopadhyay have been very specifically spoken by all the Eye Witnesses including P.W.39, A.S.I. Brajo Keshab Chowdhury. 97. EVEN though P.W.10, Madhu Kanta Jha and P.W.11, Mewalal Gupta, chose to turn hostile for reasons best known to them, we feel that if the cream is extracted from their belligerent version, then also the Prosecution far from being impaired-on the contrary, would stand to gain for the following reasons: P.W.40, Rakshakar Mondal, the First investigating Officer, immediately after being apprised of the Number of the Taxi, contacted Traffic Control and obtained the details in respect of the same. Having come to know about the ownership thereof, he tracked P.W.10, Madhu Kanta Jha, owner of the Taxi. The evidence of P.W.10, Madhu Kanta Jha shows that on the fateful night, he was sleeping in his Taxi along with P.W.11, Mewalal Gupta. At midnight, five persons asked him to take them to Park Street on his Taxi. Accordingly, he proceeded towards Park Street. Thereafter, as per the directions of the passengers, the Taxi drove down through Rafi Ahmed Kidwai Road. At midnight, five persons asked him to take them to Park Street on his Taxi. Accordingly, he proceeded towards Park Street. Thereafter, as per the directions of the passengers, the Taxi drove down through Rafi Ahmed Kidwai Road. Thereafter they reached B. B. Ganguly Street and the passengers paid him the fare. He knew the Appellants for the last one year. He proved the Garage Register (Ext.8). He further deposed that on the fateful night, at about 12.12-15 Hrs. all the Appellants asked him to take them to Park Street on his Taxi but he could not identify them in Court. P.W.11, Mewalal Gupta, who also played truant with the Prosecution, corroborates P.W. 10, Madhu Kanta Jha to the effect that both were sleeping inside the Taxi on that particular night when five Constables asked him to take them to Park Street for celebrating New Year's Eve. He named the Appellants as the passengers of the Taxi. He identified them in Court. He described that his Taxi was overtaken by the vehicle (read the one driven by P.W.3, Ashoke Sengupta). 98. BUT they were unfaithful enough to stop short of the truth. Finding From a wholesome appreciation of the entire bundle of evidence, the following salient features have surfaced : That on a night of New Year's Eve, Deceased Bapi Sen chose to celebrate the gaiety at Park Street. As such, he left his home with the wearing apparels on as described by his Elder Brother, P.W.15, Anup Kumar Sen in the company of P.W.3, Ashoke Sengupta, P.W.4, Goutam Majumdar, P.W.6, Nazibul Hossain Mollah and P.W.7, Kanai Krishna Kundu (Tendered). 99. THEY proceeded to Marine Club where the Father of P.W.5, Subrata Basu resided. There, all of them had dinner. From there, we have already traced their last journey to the Place of Occurrence via Park Street through the lights to eternal darkness. 100. THIS part of the Prosecution case, have been elaborated from the ocular evidence of P.W.3, Ashoke Sengupta, P.W.4, Goutam Majumdar, P.W.5, Subrata Basu, P.W.6, Nazibul Hossain Mollah and P.W.7, Kanai Krishna Kundu (Tendered). As if, Bapi Sen and his friends detoured for repairing for the night after having celebrated New Years they moved towards Rafi Ahmed Kidwai Road and Nirmal Chandra Street to have his tryst with death. 101. As if, Bapi Sen and his friends detoured for repairing for the night after having celebrated New Years they moved towards Rafi Ahmed Kidwai Road and Nirmal Chandra Street to have his tryst with death. 101. PLAYING the role of a Good Samaritan, he could not contain himself, when the Deceased Bapi Sen saw the occupants of 1he Taxi driven and owned by P.W. 10, Madhu Kanta Jha having on board the Appellants, including P.W.11 Mewalal Gupta, helper of the Taxi who were on a spree of lewd gestures and, vulgar exposition and trailing a Motorcycle, with a Lady as a pillion rider. 102. AFTER the Motorcycle had come to a screeching halt, the Appellants disembarked from the Taxi and tried to get physical with the said helpless Lady and intervention of Bapi Sen resulted in his being reigned with fists and blows and kicks, which precipitated his end to be formally declared before the Private Hospital initiated by his unconsciousness and treatment at the Calcutta Medical College and Hospital, which is borne out from the evidence of P.W.29, Dr. Anup Kr. Sadhu, P.W.32, Dr. Avijit Biswas and P.W.35, Dr. Krishnendu Maity subsequent to his terminal hours witnessed by P.W.30, Dr. Bani Brata Nath, P.W.34, Dr. Ajoy Agarwal and pronouncement of his end by P.W.33, Dr. Umesh Singh and cause thereof dissected by P.W.36, Dr. Uma Prosanna Ghosal with authoritative version of P.W.38. Professor Dr. Ajay Kr. Gupta, Professor and Head of the Department of Forensic and State Medicine, Calcutta Medical College and Hospital. The investigation conducted by P.W.40, Rakshakar Mondal, the First Investigating Officer and subsequently, by P.W.41, Atanu Banerjee shows the various steps taken to connect the present Appellants with the crime and how successful they have been in placating the rote of the Appellants with the death of Deceased Bapi Sen-have been already noticed by us. 103. IN our view, from the mainstay of the Prosecution evidence, the journey of Bapi Sen from his home to the venue, assault on him by the Appellants, in the manner and fashion, as told by the Eye Witnesses, the Medical Evidence leading to the cause of his death and the investigational skill culminating them tracking down the Appellants in their respective roles with the aid of subsidiary evidence on Record-proves the Prosecution case to its hilt. 104. 104. SHRI Basu has taken exception to non-production of Ext.B by the Prosecution purportedly on the premises that had the same been proved, it would have shown that Deceased was under the influence of alcohol and due to fall when the Taxi tried to sped away, he suffered injuries on the Tram line, which resulted in his death and the death could not be ascribed to the Appellants. We have carefully addressed ourselves on this score. Ext.-B is nothing but the Injury Report of Deceased Bapi Sen immediately after his admission. In the Column "Description of Events" it was inserted "he was beaten up by two boys by fists while trying to prevent eve teasing. No H/O, blunt injury, two pegs of alcohol." 105. WE have tried to trace the agony of Shri Basu in this regard as to whether we could raise a presumption under Clause (g) of Section 114 of the Evidence Act. WE fee!, it is absolutely inconsequential whether the Deceased had alcohol in his system in view of the unimpeachable nature of ocular evidence describing assault, as a result of which the injury is suffered by him, which facilitated his death, have been very clearly opined by P.W.36, Dr. Uma Prosanna Ghosal, the Autopsy Surgeon and endorsed by a very eminent personality in the field of Forensic Science, P.W.38, Professor Dr. Ajay Kr. Gupta, Professor and Head of the Department of Forensic and State Medicine, Calcutta Medical College and Hospital. As such, alcohol or no alcohol, the Prosecution could not be tilted in any fashion on account of the failure of the Prosecution to place Ext.-'B'. 106. WE also agree with the views of the learned Public Prosecutor that how could the Medical Officer, at the first blush, in the absence of any test, conclude there were two pegs of alcohol It is, after all, nothing but simply the narrative version of the event, which was noted down by the Medical Officer and we feel it cannot have guiding value while arriving at out decision. 107. THE Eye Witnesses may have dithered but if we take a complete stock of their evidence, we feel, on the main points they have stuck to their earlier version and could not be discredited in their cross examination. 108. 107. THE Eye Witnesses may have dithered but if we take a complete stock of their evidence, we feel, on the main points they have stuck to their earlier version and could not be discredited in their cross examination. 108. LEAVING aside any other aspect of the Matter, when we have found that there is the overwhelming ocular evidence of the entire incident before us, we have to give it due primacy. More so, when the said witnesses would not be discredited substantially even on the face of rigorous Cross Examination, their evidence assumes great significance. Once we have found the same as acceptable-obviously, the residuary portion of the Prosecution case recedes in the background. In our endeavour to assess the ocular evidence, after we found it as acceptable, the entire situation undergoes a substantial change. 109. FURTHERMORE, Shri Basu had felt that even though by 2.01.2003 all the Appellants were in Custody-as to why prayer for Test Identification Parade was made on 17.01.2003. 110. HE is correct, that there is no explanation for the same. But in the absence of any other fissures in the Prosecution case in this regard or any proof thereof, that the delay, which has occasioned in holding the Parade has either resulted in the identity of the Appellants being disclosed or have operated to any prejudice-we feel, the same cannot abide us. Furthermore, the Test Identification Parade is only a corroborative piece of evidence. It is the identification of the Accused in the Court, which is the substantive evidence. It has been found from the evidence of the Eye Witnesses, P.W.3, Ashoke Sengupta, P.W. 4, Goutam Majumdar, P.W.5, Subrata Basu and P.W.6, Nazibul Hossain Mollah that they had identified all the Appellants in Court. In view of the same, the Test Identification Parade, would, at best lends support to the main stream of the Prosecution case, which has, otherwise been proved by way of cogent and acceptable materials. Shri Basu has referred to the decision of Supreme Court in Rajesh Gobind Jagesna v. State of Maharashtra (supra) to the effect that on account of the delay in holding the Test Identification Parade, there were possibility of the Appellants being shown previously to the witnesses. In our opinion, the said decision cannot have any manner of application in the facts arid circumstances of the present case. In our opinion, the said decision cannot have any manner of application in the facts arid circumstances of the present case. In the said case the Accused persons were having beard and long hairs but that were removed subsequently and persons with beard and long hair were not included amongst the suspects and there, the identification Parade was held after five weeks from the arrest of the Accused. But in the instant case already, complicity of the Appellants were outlined from the evidence of P.W. 10, Madhu Kanta Jha, Owner of the Taxi and P.W.11, Mewalal Gupta, Driver of the said Taxi, who although turned hostile, as well as from the evidence of Eye Witnesses. It was simply attestation of their recognition at the Parade, 111. IN Subash and Shiv Shankar v. State of UP. (supra), which has been referred to by Shri Basu, the witnesses did hot give any description of the Accused either in F.I.R. or their Statements during investigation. As such, the Accused persons were given the benefit of doubt. IN the present case, the foundation of the identity of the Accused persons have bean set out before the Test Identification Parade was herd and the delay could be measured from the fact that P.W.41, Atanu Banerjee took up the investigation on 07.01.2003 and thereafter having investigated the case from several angles, made a prayer for identification before the learned Chief Metropolitan Magistrate and the same was held on 21.01.2003 and 28.01.2003. Arithmetically, the fact that all the Appellants were in Custody by 02.01,2003 and the Parade taking place on 21.01.2003 and 28.01.2003 respectively may satisfy Shri Basu's objection with regard to the delay but if the evidence of P.W.41, Atanu Banerjee is revisited with utmost circumspection, it would be found that the delay, if any, had necessitated in the turn of events, which he has deposed before the Court. At once, a clue to the delay can be gathered therefrom. 112. SEQUENCE of the steps taken by him in his investigation since 07.01.2003, when he was in seizin thereof, would show that there was no substantial loss of time. In hindsight, if we see the evidence of P.W.28, Debasish Bandopadhyay, the learned Metropolitan Magistrate, who held the Test Identification Parade, we would find that the same was far from being tainted by any allegation of previous identification or was vulnerable to any folly. 113. In hindsight, if we see the evidence of P.W.28, Debasish Bandopadhyay, the learned Metropolitan Magistrate, who held the Test Identification Parade, we would find that the same was far from being tainted by any allegation of previous identification or was vulnerable to any folly. 113. RELIANCE of Shri Basu on the decision of Supreme Court in Hasib v. The State of Bihar (supra), in our view, would also, be of little help for him as the delay, which occasioned in conducting the Test Identification Parade, has been suitably found to be accepted-the said point is no longer available before Shri Basu to show that the delay in holding the Test Identification Parade is fatal to the Prosecution and the Court should not lend any credence to such identification. 114. SHRI Basu also referred to the condition of the Deceased when he was first admitted at the Calcutta Medical College and Hospital and thereafter to the Private Hospital where Bapi Sen breathed his last, to show that otherwise Bapi Sen was hail and hearty and the death was not solely accentuated due to the assault but owing to the negligence in his treatment. Scrapping aside all other evidence, if we fix our attention to the Autopsy Surgeon P.W.36, Dr. Uma Prosanna Ghosal, which has morphed into the version of P.W. 38. Professor Dr, Ajay Kr. Gupta, Professor and Head of the Department of Forensic and State Medicine, Calcutta Medical College and Hospital-we feel there is no scope to arrive at any other contrary view. 115. ON the face of cogent ocular version of the incident, which suitably stands approved by the Medical Evidence, there is no scope to disbelieve the Prosecution case in the tight of the objection of Shri Basu. [See : D. Sailu v. State of Andhra Pradesh, (2009)1 SCC (Cr) 898]. 116. WE have also given our thought to that part of the submission relating to the angle of assault covering only the right side of the head of the Deceased, although, the ocular evidence speaks of dealing with random blows. This part of the submission of Shri Basu has to be appreciated on the strength of the ocular evidence, which shows the Appellants had assaulted the Deceased indiscriminately, as a result of which, he fell down and even thereafter he was continued to be assaulted. This part of the submission of Shri Basu has to be appreciated on the strength of the ocular evidence, which shows the Appellants had assaulted the Deceased indiscriminately, as a result of which, he fell down and even thereafter he was continued to be assaulted. It may be that a particular view of the injury was noted by the Medical Officers, but that does not mean that the portion not covered by their examination, was free from the assault by the Appellants. This would be a conjecture and not any conclusive proof on the basis of any material. On the contrary, we are more inclined to accept all the submissions made by the learned Public Prosecutor that the Prosecution has been able to prove the citus, the identity cause of death and the involvement of all the Appellants in the crime. 117. WE are also inclined to accept the views of the teamed Public Prosecutor, notwithstanding the failure of the Prosecution to prove Ext.-B the contents of Ext.54 and Ext.55 takes care of the situation, which relates to the initial Injury Report prepared by late Dr. Prasanta Biswas, Emergency Medical Officer of the Calcutta Medical College and Hospital, whose hand writing was proved by P.W. 32. Dr. Avijit Kr. Biswas. 118. NOW, this would bring us to the last phase of our decision. Shri Basu has strenuously argued with regard to the incident having taken place in a fit of anger and in the absence of any previous enmity, he felt, that the Conviction of the Appellants recorded by the learned trial Court in respect of a Charge of Section 302 of the Indian Penal Code cannot be sustained. Independently, detaching ourselves from the impact of the main stream of the Prosecution case, we have applied our Judicial mind to this aspect of the Matter. We feel, sorry. We are unable to accept this part of the submission of Shri Basu. 119. LEARNED Public Prosecutor is correct in his submission that all the Appellants have had an intention to kill. Our foray in the ocular evidence shows that Bapi Sen was assaulted mercilessly with fists and blows and sometimes with kicks even after he fell down. [See: the evidence of P.W.3, Ashoke Sengupta, P.W.4, Gautam Majumdar, P.W.5, Subrata Basu and P.W.8. Ganesh Banik.) 120. Our foray in the ocular evidence shows that Bapi Sen was assaulted mercilessly with fists and blows and sometimes with kicks even after he fell down. [See: the evidence of P.W.3, Ashoke Sengupta, P.W.4, Gautam Majumdar, P.W.5, Subrata Basu and P.W.8. Ganesh Banik.) 120. NOTWITHSTANDING the fact that they were apprised that Bapi Sen was a Police personal, the appellants reacted that they were also Police personnel and exhorted others to annihilate Bapi Sen. Even if we weed out from our mind the moral aspect of the Matter, where the Appellants were on a evil mission by way of trailing a helpless Lady on Motorcycle targeting her for eve teasing, whose rescue resulted in the death of Bapi Sen-we find velocity of the blows and the cruelty, with which the entire execution was done without being prevented to do something wrong, when read in tune with the Medical Evidence, leaves no scope before the Court to mollify the Conviction on the strength of the decisions of Supreme Court in A) Shankar Diwal Wadu v. State of Maharashtra (supra) B) Hafiz v. State of U.P. (supra) C) Sunder Lal v. State of Rajasthan (supra) and D) Hem Raj v. The State (Delhi Administration) (supra). 121. THE Branch of Shri Basu's submission touching on the question of the Conviction of the Appellants being mollified to one under Section 304 of the Indian Penal Code on the strength of the decisions of Hafiz v. State of U.P. (supra), Sunder Lal v. State of Rajasthan (supra), Shankar Diwal Wadu v. State of Maharashtra (supra) and Hem Raj v. The State (Delhi Administration) (supra) have been very carefully considered by us. 122. THE Supreme Court in Hafiz v. State of U.P. (supra) was dealing with a case of assault, which took place in spur of moment and in the said case intention of the Deceased to murder the Accused was not established. In Sunder Lal v. State of Rajasthan (supra) the facts and circumstances were absolutely different and can be clearly distinguishable from the present case. The intention of the Appellants in causing the death of Deceased Bapi Sen, was amply proved through the evidence of the Eye Witnesses from where we gathered that even after he fell down on account of indiscriminate assault, he was still reined with blows. 123. The intention of the Appellants in causing the death of Deceased Bapi Sen, was amply proved through the evidence of the Eye Witnesses from where we gathered that even after he fell down on account of indiscriminate assault, he was still reined with blows. 123. IN Hem Raj v. The State (Delhi Administration) (supra), the Accused inflicted a single stab injury in course of an incident in a spur of moment and on a heat of passion arising out of sudden quarrel. But in the case in hand the Appellants were on a very ugly mission, which we have found from the evidence before us. They were teasing a woman and after they could get hold of her when the Motorcycle, on which she was riding, came to a stop, the Appellants sought to jostle her and as Bapi Sen intervened-they became furious and started assaulting him in the manner, which we have noted earlier. It cannot be said that on a spur of moment the incident took place nor it can be said that in a fit of anger the same happened. It was a concerted series of act, which resulted in Bapi Sen slumping upon being assaulted, which did not cease even after he lay on the ground. 124. SIMILARLY, the decision of Supreme Court in Shankar Diwal Wadu v. State of Maharashtra (supra) referred to by Shri Basu, cannot have any manner of application on account of the fact the decision related to a sudden fight on account of the Accused being enraged. By now we have formed such an opinion, on the basis of the evidence and Materials on Record that there is no escape from the conclusion that it is the Appellants, who had been the architects of the homicidal death of the Deceased Bapi Sen in the manner and situation as borne out from the evidence. As a result thereof, the Conviction recorded by the learned trial Court against each of them in respect of the principal Charge, stands proved. 125. HAVING missed their prey due to the intervention of the Deceased Bapi Sen, the Appellants turned their whole anger upon him. Allot them joined hands in mercilessly assaulting him. It has been borne out from the evidence that all the Appellants boarded the Taxi in question, were teasing the Lady riding pillion in the Motorcycle. 125. HAVING missed their prey due to the intervention of the Deceased Bapi Sen, the Appellants turned their whole anger upon him. Allot them joined hands in mercilessly assaulting him. It has been borne out from the evidence that all the Appellants boarded the Taxi in question, were teasing the Lady riding pillion in the Motorcycle. It is also seen from the evidence that immediately after the Motorcycle came to a halt, the Appellants came down from the Taxi and tried to molest her. Obviously, they share the common intention. 126. NEEDLESS to say that each and every Accused need not be shown to have committed the overt act. The Prosecution has been successful to prove that more than one of the Appellants acted in furtherance of the common intention in assaulting the Deceased. The Prosecution, in our opinion, has been successful in proving its case against all the Appellants in respect of the Charge of Section 302 read with Section 34 of the Indian Penal Code. It was the fall out of the joint participation in the action, which resulted in the death of Bapi Sen. That there was such a meeting of mind by the Appellants when their prey (read the Lady) was rescued by the Deceased, even on the spur of the moment, the assault was a sequence to the same, which resulted in the end of Bapi Sen [See: 1) Hardeep Singh and Ors. v. State of Han/ana, (2009)2 SCC (Cr) 770 and also 2) Paramjit Alias Mithu Singh v. State of Punjab Through Secretary (Home), (2009)1 SCC (Cr) 299.] 127. EVEN though the Lady, who was on the Motorcycle and was the target of being teased, could not be brought before the Court in spite of the best effort put forth by P.W.41, Atanu Banerjee, as noticed by us in his deposition-we find the Prosecution, in a way, has been successful also to prove its case in respect of the Charge of Section 354 of the Indian Penal Code. The consistent evidence of the Eyewitnesses (P.W.3, Ashoke Sengupta, P.W.4, Goutam Majumdar and P.W.5, Subrata Basu and P.W.6, Nazibul Hossain Mollah) shows that the Appellants were teasing the woman, who was sitting behind the back of the Motorcycle as a pillion rider. As soon as the Motorcycle stopped, all of them came out from the Taxi and tried to jostle with the said Lady. As soon as the Motorcycle stopped, all of them came out from the Taxi and tried to jostle with the said Lady. In a different angle, the evidence of the two other subsidiary Eye Witnesses i.e. P.W.8, Ganesh Banik and P.W.9, Samir Ghosh also shows that they had noticed a Lady on a Motorcycle, was being trailed by four or five persons in a Taxi and they were also trying to take liberty with the said Lady. Both, P.W.8, Ganesh Banik and P.W.9, Samir Ghosh were categorical in this regard. As such, we feel the Conviction recorded by the learned trial Court in respect of the said Charge is also quite apposite. Conclusion 128. BEFORE saying omega, we Would place on Record, our deep appreciation of the work done by P.W.40, Rakshakar Mondal, the then Sub- Inspector of Police attached to Section-'H' Police Station. It is he, who, lost no time to trace the Taxi and nabbed P.W.10, Madhu Kanta Jha and P.W.11, Mewalal Gupta to reach a logical phase in the Prosecution case. His alertness and promptitude has accentuated the investigation to its logical conclusion in a great way. 129. LEARNED trial Court has recorded its appreciation of the investigation' done by P.W.41, Atanu Banerjee. We not only share the same but feel that a crime of this magnitude could only be solved by the professional skill and high sense of duty and intuitive skill, which culminated in submission of his Report in final form that paved the way for the Trial, which ended in its logical conclusion and saw Conviction of the Appellants. Commendation 130. BOTH, P.W.40, Rakshakar Mondal and P.W.41, Atanu Banerjee deserves commendation for another purpose. Fraternity factor reigned supreme-both, inversely as well as conversely. Since the Appellants as well as the Deceased belonged to the same camaraderie, both P.W.40, Rakshakar Mondal and P.W.41, Atanu Banerjee investigated the case in an absolute independent and dispassionate fashion bereft of any sympathy or sentiment naturally expected in such a situation. We would request the Commissioner of Police, Calcutta to kindly communicate our appreciation to P.W.40, Rakshakar Mondal and P.W.41, Atanu Banerjee in their respective Place of Posting and it may be incorporated in their Service Book for future reference. Recommendation 131. We would request the Commissioner of Police, Calcutta to kindly communicate our appreciation to P.W.40, Rakshakar Mondal and P.W.41, Atanu Banerjee in their respective Place of Posting and it may be incorporated in their Service Book for future reference. Recommendation 131. OF late, it is a common experience in the Justice Delivery System, witnesses, who, according to Bentham "are the eyes and ears of Justice", for reasons best known to them, attract the wrath of Section 154 of the Evidence Act. In the process, the viability of the Prosecution suffers a jolt. Sometimes, it is also jettisoned just because of such truant personalities, who blows hot and cold in the same breath, once before the investigation and thereafter before the Court. But although, we have culled out portions from the evidence of P.W.10, Madhu Kanta Jha and P.W. 11, Mewalal Gupta, which, in a way weaves a thread in the structure of the Prosecution case and sub-section (2) has been brought into the Statute Book in 2006 to give more teeth to Section 154 and although we have not been swept away by the adverse attitude of these two witnesses, nor the Prosecution case has suffered-but we feel these two witnesses are required to be dealt with. Otherwise, the Criminal Justice System would be taken for a ride. 132. WHILE the Accused has a right for a fair Trial, which is guaranteed under Article 21 of the Constitution of India, at the same time the right of the victim and his family that the perpetrators of the crime, be punished-cannot be ignored. For this purpose the question of witness protection has cropped up. [See : National Human Rights Commission v. State of Gujarat and Ors., (2009)3 SCC (Cr) 44]. These two witnesses, from their tenor of evidence, is quite apparent, had a close nexus with the Appellants, who resided in the mess, which was frequented by these two Appellants and they were staying in the close by place, knowingly feigned ignorance to their identity so as to shield them from the eye of Law. 133. IT would be only appropriate that necessary steps as known to Law is taken for proceeding against them for perjury before the Competent Forum. Otherwise, it will give a wrong signal and prospective errant witnesses will get a bonus in such type of activities. Decision 134. 133. IT would be only appropriate that necessary steps as known to Law is taken for proceeding against them for perjury before the Competent Forum. Otherwise, it will give a wrong signal and prospective errant witnesses will get a bonus in such type of activities. Decision 134. THE Appeals fails and the Conviction and Sentence recorded by the learned trial Court is affirmed. Appeal dismissed. Request 135. LEARNED Registrar (Administration), is kindly requested to forward two copies of this Judgment to the Commissioner of Police, Calcutta by name for his kind favour in forwarding the same to P.W.40, Rakshakar Mondal and P.W.41, Atanu Banerjee for incorporating the same in their respective Service Book. Registry is to process the Lower Court Records accordingly in terms of bur aforesaid directions.