- (1.) This appeal is filed against the final judgment and order dated 29.01.2008 passed by the Gauhati High Court, Agartala Bench in Criminal Appeal No. 90 of 2005 whereby the Division Bench of the High Court, on an appeal filed by the State of Tripura-respondent herein, reversed the order of acquittal of the appellants herein dated 19.04.2005 passed by the Additional Sessions Judge, West Tripura, Khowai in Case S.T. No. 54(WT/K)/2002 and convicted and sentenced them to imprisonment for life under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as "IPC") with a fine of Rs.3000/- each, in default, to suffer a further term of simple imprisonment for three months.
(2.) The convicted accused, Tapan Das (A-5) and Gautam Das (A-11), against the same order of the High Court dated 29.01.2008 confirming their conviction under Section 302 IPC and imposing life sentence with a fine of Rs.3,000/- each, in default, to suffer simple imprisonment for three months filed this appeal by way of special leave petition with a delay of 62 days. Delay condoned. Leave granted.
(3.) Brief facts: a) On 31.08.2000, a meeting was convened in West Santinagar S.B. School at the invitation of Durgapur Local Committee of Democratic Youth Federation of India (in short "DYFI"). After the meeting was over, Tapan Chakraborty, (since deceased), a leader of DYFI accompanied by Babul Dey PW-1, Ganesh Kol PW-2, Nilai Das PW-3, Ramakanta Paul PW-10, Benu Ranjan Dhupi PW-11 and Prabir Biswas PW-12 reached Santinagar Ferry Ghat to cross the river on way to home, on the other side of the river. At about 6.30 p.m., when Tapan Chakbraborty and his companions disembarked from the boat, Ratan Sukladas (A-12) dragged him down and when he fell on the ground, Tapan Das (A-5) and Gautam Das (A-11) shot at him causing severe bullet injuries. After finishing their job, the assailants fled away. The victim was immediately taken to the local hospital but as he was sinking, he was referred to G.B. Hospital at Agartala for specialized treatment. The victim died on the way to hospital. (b) On the very same day, at about 08:35 p.m, one Babul Dey (PW-1) lodged a First Information Report (in short "the FIR") being FIR No. 85/2000 with the Police Station, Kalyanpur, West Tripura, Tripura. On the basis of the FIR, a case was registered under Sections 148, 149, 326 and 307 of the IPC read with Section 27 of the Arms Act, 1959 against eight persons, viz., Somesh Das (A-7), Mrinal Das (A-4), Tapan Das (A-5), Ashim Bhattacharjee (A-2), Pradip Das (A-9), Shailendra Das (A-3), Subal Deb (A-10) and Gautam Das (A-11) and others. c) After the death of Tapan Chakraborty, Section 302 IPC was also added against the accused persons. During the investigation, the Investigating Officer arrested 13 accused persons and on completion, filed a report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") under Sections 148, 149, 326 and 302 IPC and Section 27 of the Arms Act against Somesh Das (A-7), Mrinal Das (A-4), Tapan Das (A-5), Ashim Bhattacharjee (A-2), Pradip Das (A-9), Shailendra Das (A-3), Subal Deb (A-10), Gautam Das (A-11), Anil Das (A-1), Bikash Das (A-6), Uttam Shil (A-8), Ratan Sukladas (A-12) and Radha Kant Das (A-13). d) Vide order dated 12.08.2002, the Additional Sessions Judge, Khowai, West Tripura, framed charges under Sections 148, 149 and 302 IPC against all the 13 accused persons. Thereafter on 20.11.2002, on the request of the Special Public Prosecutor to alter the charges, the Additional Sessions Judge modified the charges under Section 302 read with Section 34/120B IPC and Section 27 of the Arms Act. e) During the recording of evidence, on 16.06.2004, accused Ratan Sukladas (A-12) filed an application praying for grant of 'pardon' and to treat him as an 'approver' which was granted by the trial Court. After examining all the witnesses, the trial Court, vide judgment dated 19.04.2005, acquitted Anil Das (A-1), Ashim Bhattacharjee (A-2), Shailendra Das (A-3), Mrinal Das (A-4), Bikash Das (A-6), Somesh Das (A-7), Uttam Shil (A-8), Pradip Das (A-9), Subal Deb (A-10) and Radha Kant Das (A-13) of the charges leveled against them and convicted Tapan Das (A-5) and Gautam Das (A-11) for the offences punishable under Section 302 of the IPC and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs.3,000/- each, in default, to further undergo simple imprisonment for three months. f) Aggrieved by the judgment of the trial Court, Tapan Das (A-5) and Gautam Das (A-11) filed an appeal being Criminal Appeal No. 47 of 2005 in the Gauhati High Court, Agartala Bench. The State of Tripura also filed Criminal Appeal No. 90 of 2005 against the order of acquittal of ten accused persons by the trial Court. The High Court, by impugned common judgment dated 29.01.2008, dismissed the appeal filed by the convicted accused persons (A-5 and A-11) and partly allowed the appeal filed by the State by setting aside the acquittal of four persons, namely, Mrinal Das (A-4), Pradip Das (A-9), Somesh Das (A-7) and Anil Das (A-1) and convicted them under Sections 302/34 IPC and sentenced them with imprisonment for life with a fine of Rs.3000/- each, in default, to suffer a further term of simple imprisonment for three months. g) Aggrieved by the common impugned judgment dated 29.01.2008 passed by the Division Bench of the High Court, all the convicted accused persons filed these appeals before this Court by way of special leave. Vide this Court's order dated 16.09.2009, the name of Pradip Das, appellant No.2 herein and (A-9) before the trial Court has been deleted from the array of the parties as he is not traceable.;