JUDGMENT : Joymalya Bagchi, J. 1. Appeals are directed against the judgment and order dated 20-23.02.2015 passed by learned Additional Sessions Judge, Fast Track Court, Serampore, Hooghly in S.C. No. 176 of 2006 (S.T. No. 14 of 2007) convicting the appellants for commission of offence punishable under Sections 302/364/120B of the Indian Penal Code and sentencing them to suffer imprisonment for life each and to pay a fine of Rs.5,000/- each, in default, to suffer simple imprisonment for three years for the offences punishable under Sections 302/364/120B of the Indian Penal Code. 2. Prosecution case, as alleged, against the appellants is to the effect that one Sambhu Roy aged about 26 years was engaged in various antisocial activities for the last 5-6 years. As a result 7-8 days prior to the incident, he left his residence at 3, Chatkat Gate N.D. Bose Land, Konnagar, Uttarpara and started residing with his wife, Madhuri Roy(P.W. 21) and children to the house of one Shiv Bachchan Prosad Kahar Singh as a tenant at Adarshya Nagar, English Road, Uttarpara. On 18.12.2005 at about 2 a.m. at night, three unknown persons entered the rented house after damaging the grill gate and brought him out. His wife tried to resist them but they threatened her. She shouted for help but nobody came to her rescue. Thereafter, unknown accused assaulted on the head of her husband with a sharp cutting weapon and shot him dead in front of Black Panther Club of English Road. Wife of the deceased suspected that due to prior enmity her husband was murdered. On her written complaint, Uttarpara P.S. Case No. 171 of 2005 dated 18.12.2005 under Sections 302/34 of the Indian Penal Code read with Section 25/27 Arms Act was registered against unknown miscreants. Police officers came to the spot and held inquest report over the dead body of the victim. In a subsequent statement made on the self-same date, it is alleged Madhuri (P.W.21) disclosed the names of the appellants as assailants. Subsequently, investigation was transferred to CID, West Bengal and the appellants who were already in custody in connection with another case were interrogated by the second investigating officer (P.W. 24) and shown arrested in this case. 3. In a subsequent statement made on the self-same date, it is alleged Madhuri (P.W.21) disclosed the names of the appellants as assailants. Subsequently, investigation was transferred to CID, West Bengal and the appellants who were already in custody in connection with another case were interrogated by the second investigating officer (P.W. 24) and shown arrested in this case. 3. In conclusion of investigation, charge sheet was filed against the appellants and one Shyamal Das alias Hubba Shyamal (since deceased), Bapi Khastagir @ Benarasi Bapi, Rabi Das (acquitted during trial) and Chanchal Sengupta, (absconding accused). The case was committed to the court of sessions and transferred to the court of learned Additional Sessions Judge, Fast Track Court, Serampore, Hooghly, for trial and disposal. 4. Charges were framed against the appellants and co-accused persons under Sections 120B/364/302/120B/212 of the Indian Penal Code and under Sections 25/27 Arms Act. The appellants pleaded not guilty and claimed to be tried. 5. In the course of trial prosecution examined 25 witnesses and exhibited a number of documents. The defence of the appellants was one of false implication. 6. In the course of trial the prosecution did not press the charges under Sections 25/27 of the Arms Act. In conclusion of trial, learned Trial Judge by the impugned judgment and order convicted and sentenced the appellants, as aforesaid. Appellants were acquitted under Section 212 of the Indian Penal Code while the co-accused Benarasi Bapi @ Bapi Khastagir and Rabi Das were acquitted of all charges. Hence, the present appeals. 7. Mr. Roy, learned Counsel appearing for the appellants in all the appeals, argued that the evidence of P.W. 21 is not reliable. She had not disclosed the names of the assailants in the F.I.R. She claimed that she remained mum due to fear. However, on the self-same day she claimed that she further interrogated and stated to P.W. 23, first investigating officer, the names of the appellants as the assailants of her husband. P.W. 23, however, in his cross-examination deposed that Madhuri (P.W. 21) had stated that her husband had been assaulted by unknown accused persons. Hence, evidence of P.W. 21 relating to disclosure of names of the appellants to the first investigating officer (P.W. 23) is contradicted by the latter and hence ought not to be the foundation of conviction of the appellants. He further submitted that P.Ws. Hence, evidence of P.W. 21 relating to disclosure of names of the appellants to the first investigating officer (P.W. 23) is contradicted by the latter and hence ought not to be the foundation of conviction of the appellants. He further submitted that P.Ws. 7 and 8 were chance witnesses and could not show that they resided in the neighbourhood at the time of occurrence. Even the Trial Judge had disbelieved the said witnesses. Under such circumstances, there is no legally admissible evidence connecting the appellants to the alleged offence. Hence, conviction of the appellants may be set aside and the appeals be allowed. 8. On the other hand, Mr. Maity, learned Additional Public Prosecutor along with Mr. Bardhan, learned Counsel appearing for the State, has argued that wife of the deceased (P.W. 21) is most natural and probable witness to the incident. She narrated the incident in details and implicated the appellants. She has also given reason as to why she kept mum at the first instance but subsequently disclosed the names of the appellants to P.W. 23. P.W. 23 deposed that he had examined P.W. 21 after registration of F.I.R. probabilising the evidence of P.W. 21. Post mortem doctor (P.W. 9) has corroborated the ocular version of P.W. 21. Hence, the appeals are liable to be dismissed. 9. I have analyzed the evidence on record in the light of the submissions made on behalf of the parties. 10. Prosecution case against the appellants is essentially based on evidence of P.W. 21, the de facto complainant and wife of the deceased. P.W. 21, Madhuri Roy, has deposed that her husband was involved in various anti-social activities and one week prior to the incident they left their permanent residence at Konnagar 3, Chatkal Lane, N.D. Bose Lane and started residing in a rented apartment at Adarshya Nagar, 23, English Road. She was residing with her husband and three sons aged about 5 years, 3 years and 8 months respectively. On 18.12.2005 at 2 a.m. she heard footsteps outside the house and a person requested her to open the door. She did not open the door. Thereafter one of the persons forcibly opened one of the windows of the room. All the accused persons gave a push at the grill of verandah of their house and then they started knocking at the door of their room. She did not open the door. Thereafter one of the persons forcibly opened one of the windows of the room. All the accused persons gave a push at the grill of verandah of their house and then they started knocking at the door of their room. Ultimately, she switched on the light and opened the door. Three accused persons viz. Bachhu Das, Afjal and Tulu entered their room and other two accused persons viz. Shambu and Suman stood outside the room. All the accused persons were armed with firearms. Bachhu, Afjal and Tulu started heckling her husband and threatened to kill him. She cried "bachaoo, bachaoo". Then the accused Bachhu put the gun on her forehead and threatened to kill her if she screamed. The accused persons dragged her husband to a vacant land in front of a club named Black Panther Club. She followed them with her 8 month old child in her lap. All the accused persons assaulted her husband on the head. Thereafter they tore the clothes of her husband and then persons viz. Tulu, Bachhu and Afjal fired bullets at him. Other two accused persons viz. Sambhu and Suman held her husband by his hands on both sides. After shooting they left the place two motorcycles. She started crying. Some people assembled at the spot. In the next morning, local police officers came to the spot. She went to the police station and one Bhola nath Singh (P.W. 22) scribed the F.I.R. Bhola read out the F.I.R. and explained it to her. She put her thumb impression on it. Police again took her to the spot where her husband was lying dead. Police held inquest over the dead body of her husband in her presence and prepared a report. She put her thumb impression on the report. Police seized cover of bullet, two bullet cases, one used up bullet, one wrist watch, one quilt, one red colour sweater of her eight month old child, blood stained earth from the place of occurrence. Police also seized glasses, empty liquor bottles from her house and prepared a seizure list where she put her thumb impression. She narrated the names of the accused persons to the police. At the time of lodging F.I.R. she did not mention the names of the accused persons due to fear. She identified the seized articles in Court. Police also seized glasses, empty liquor bottles from her house and prepared a seizure list where she put her thumb impression. She narrated the names of the accused persons to the police. At the time of lodging F.I.R. she did not mention the names of the accused persons due to fear. She identified the seized articles in Court. She also identified the photographs taken by P.W.1, photographer, in the course of investigation. 11. In cross-examination she stated that Afjal assaulted her husband with butt of gun on his head. Then, Bachhu Das tore the shirt of her husband and fired a bullet at him. The bullet hit the left side of chest of her husband. Tulu fired at him but missed. Thereafter, Tulu and Afjal again fired bullets at the stomach of her husband. 12. P.W. 22, Bholanath Singh, is the scribe who wrote the F.I.R. and proved the document. (exhibit-9). 13. In cross-examination he claimed that there was no atmosphere of fear inside the police station where the F.I.R. was drafted. 14. P.W. 23, Bijoy Kumar Biswas, is the first investigating officer. He was posted at Kanaipur Beat House under Uttarpara Police Station at the time of occurrence. He received information from I.C. of Uttarpara Police Station that one person named Sambhu Roy had been murdered at Adarshya Nagar, English Road within Uttarpara Police Station. He commenced investigation of the case. Madhuri Roy (P.W. 21) identified the body of her husband. He prepared inquest report on the dead body of Shambhu Roy. Madhuri Roy, Rajendra Roy and other local people signed on the inquest report. Local photographer took photographs of the dead body as per his instruction. Dead body was sent to Serampore Walsh Hospital by P.W. 2, a constable who had accompanied him. He seized various articles at the place of occurrence under a seizure list (exhibit-11). He also seized wine bottles, empty glasses at the residence of the deceased under a seizure list (exhibit-12). He prepared rough sketch maps of the tenanted room from where the victim had been dragged as well as the placed of occurrence where he shot at (exhibit-13 & 14). He seized the articles of the deceased produced by P.W. 2 after post mortem examination. 15. In cross-examination, he stated that wife of the deceased was present at the time of holding inquest. He seized the articles of the deceased produced by P.W. 2 after post mortem examination. 15. In cross-examination, he stated that wife of the deceased was present at the time of holding inquest. He did not ask anyone regarding the cause of death of the deceased. At the relevant time Madhuri Roy stated to him that some unknown persons had called her husband and killed him. Case was transferred to C.I.D., West Bengal for investigation. 16. P.W. 24, Subrata Bardhan, is the second investigation officer who took over investigation on 21.12.2005. On 23.12.2005 the appellants were shown arrested in connection with the present case as they were already arrested in connection with Uttarpara Police Station Case No. 174 of 2005. 17. P.W. 25, Sri Pallab Kumar Ganguly, is the third investigating officer who submitted charge-sheet in the present case. 18. P.W. 9, Dr. Debaprasad Ghosh, is the postmortem doctor who held the postmortem over the body of the victim and found the following injuries: (1) One blunt injury in scalp - " x 1" x 1" on left parietal region. (2) One well circumscribed round lesion on abdomen just below left coastal margin inverted. Local darkening and burn injury about 1c.m. in dia-meter. (3) Another well circumscribed round lesion just below left anterior superior spine margin inverted. (4) Another well circumscribed round lesion just above left clavicle-margin inverted local blackening darkening and local bleeding. (5) Another well circumscribed round lesion just above superior border of left scapula - margin inverted. 19. On dissection he found the following injuries:- (1) Intra cerebral haemorrhage in left parietal region. (2) Blood in peritoneal cavity. (3) One well circumscribed lesion in stomach in anterior surface near greater car nature. 20. All the important internal organs are found pale. 21. In his opinion cause of death was due to shock and haemorrhage due to bullet injury and blunt injury in scalp and intra cerebral haemorrhage ante mortem in nature. He proved the postmortem report as exhibit -5. 22. From the aforesaid evidence on record it appears P.W. 21, wife of deceased, claimed to be present at the time when the deceased was dragged out from his tenanted room and murdered. It has been argued that the manner and course of assault of the victim, Shambhu, as narrated by P.W. 21 is corroborated by the postmortem doctor, P.W. 5. From the aforesaid evidence on record it appears P.W. 21, wife of deceased, claimed to be present at the time when the deceased was dragged out from his tenanted room and murdered. It has been argued that the manner and course of assault of the victim, Shambhu, as narrated by P.W. 21 is corroborated by the postmortem doctor, P.W. 5. However, involvement of the appellants in the murder of the deceased has been seriously challenged on the ground that P.W. 21 had not divulged their names at the earliest opportunity i.e. in the F.I.R. lodged at the police station soon after the incident. P.W. 21 claimed that she had kept mum with regard to the identity of the assailants out of fear. There is evidence on record that both the victim as well as the appellants had criminal background. The version of P.W.21 that she could not disclose the names of the assailants of her husband at the time of lodging first information report in the police station due to fear is, however, not supported by the scribe P.W.22 who claimed that there was no atmosphere of fear at the police station. Soon thereafter, P.W.23 first investigating officer arrived at the spot and held inquest on the dead body. He also seized various articles at the place where the dead body was found as well as from the tenanted room of the deceased. Thereafter, he again recorded the statement of the de-facto complainant, P.W.21. Although P.W.21 claimed that in her subsequent statement, she had named the appellants, P.W.23 contradicted her on such score. In fact, in cross-examination P.W.23 claimed that at the relevant time P.W.21 stated that her husband had been murdered by unknown accused persons. It is nobody's case that the appellants were unknown to P.W.21. Even if one believes that P.W.21 out of fear had kept mum with regard to the identity of the assailants of her husband at the time of lodging first information report, her plea that she disclosed the names of the assailants in her subsequent statement to P.W.23 is not supported by the latter on dock. Hence, I find it difficult to hold that P.W.21 had identified the assailants of her husband on the fateful night. 23. Hence, I find it difficult to hold that P.W.21 had identified the assailants of her husband on the fateful night. 23. It has been argued that the evidence of P.W.21 and P.W.23 ought to be read as a whole which would show that she had been interrogated by P.W.23 subsequent to registration of F.I.R. on the self-same day. In view of the fact that P.W.23 who interrogated P.W.21 on the self-same day had contradicted her stance and claimed at the relevant time P.W.21 had stated unknown accused persons had killed her husband, I consider it unsafe to rely on her version which appears to be afterthought to come to a finding of guild against the appellants. 24. The other evidence on record viz., P.W.7 and P.W.8 are equally flimsy and have not been believed by the trial court. P.W.7 and P.W.8 claimed that they were hawkers selling wares in Kolkata and used to live in Konnagar Jhupri beside the railway station. They claimed on the fateful night having missed the last local train, they arrived at Kanaipur more in a lorry. While they were returning home they found the deceased Sambhu being chased by the appellants and one Benarasi Bapi (acquitted accused). P.W.21 with a child in her lap was following them. Thereupon, Mihir Das @ Bachu, Afjal Ali and Benarasi Bapi fired at the victim three times. Sambhu assaulted the victim with the butt of his fire arm. Out of fear they fled away. In cross-examination, P.W.7 could not produce voter's identity card, ration card or voters list to show that he resided in the locality. He admitted that the Jhupri (shack) is presently not in existence. During cross-examination, P.W.8 was confronted that his pan card, Ext.A, voter's identity card, Ext.B, income tax return, Ext.C as well as school admit card, Ext.D improbabilising his version that he was a hawker who resided in a Jhupri near the place of occurrence. P.W.7 and P.W.8 stood discredited as they could not establish that they were residing in a Jhupri near Konnagar railway station near the place of occurrence. Accordingly, trial judge did not place reliance on their versions and I have no reason to take a contrary view in the matter. 25. P.W.7 and P.W.8 stood discredited as they could not establish that they were residing in a Jhupri near Konnagar railway station near the place of occurrence. Accordingly, trial judge did not place reliance on their versions and I have no reason to take a contrary view in the matter. 25. In the light of the aforesaid discussion it appears P.W.21, the sole eye witness relied by the trial court, had not divulged the name of the appellants at the time of lodging first information report and her plea that she divulged the names of the appellants as assailants soon thereafter during further investigation does not find support from P.W.23, investigating officer who examined her. Hence, there is no escape from the conclusion that her evidence in court implicating the appellants as the assailants is an afterthought and based on mere surmise and conjectures. Accordingly, I am loath to rely on her version to come to a find of guilt against the facts and circumstances of the case. 26. Conviction and sentence of the appellants are set aside. 27. The appeals are, accordingly allowed. Connected applications are also disposed off. 28. The appellants shall be released from custody forthwith, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure. 29. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 30. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree.