- (1.) This appeal has been filed questioning correctness of the judgment rendered by a Division Bench of the Calcutta High Court directing acquittal of the respondent No. 1 (hereinafter referred to as the 'accused'). The Additional Sessions Judge, 3rd Court, Midnapore, had found the accused guilty of offence punishable under Sections 302 and 307 of the Indian Penal Code, 1860 (for short the 'IPC') and also Section 25 of the Arms Act, 1959 (for short the 'Arms Act'). Sentence of imprisonment for life, 7 years and one year respectively was awarded. Originally 5 accused persons were there, and each was charged for the commission of offence punishable under Sections 302, 307 read with Sections 34 and 447, IPC. One Golok Pal died before charge-sheet was filed. Similarly accused-Narendra Patra died during trial and three persons namely accused-appellant-Phani, Niranjan Pal and Swaran Dutta faced trial. The trial Court found accused-Niranjan Pal and Swaran Dutta to be not guilty. It was only the accused-respondent No. 1 who was found guilty and convicted as aforesaid.
(2.) Accusations which led to trial of the accused is as follows : Information was lodged at the Binpur Police Station on 1-6-1977 about murderous assaults on one Midnap. Bhanumati and infliction of serious injuries on others. Investigation was undertaken. It transpired during investigation that the accused persons and the complainant party being close relations have been residing in the same homestead with separate portions earmarked by mutual arrangement. Golok Pal was the eldest member of one branch and Brindaban Pal (P.W. 1) is the eldest member of the other branch, Golok Pal and Brindaban Pal being brothers to each other. On 1-6-1977 in the morning the accused persons conspired together to erect a fence inside the courtyard which they have been contemplating since a long time. They also conspired that if the complainant party caused obstruction they should be finished. At about 7.30 a.m. the party led by Golok Pal started digging holes in the midst of the inner courtyard of the house. Brindaban (P.W. 1) and his sons protested. At this Golok and Niranjan ordered to finish Brindaban Pal. At this stage, Niranjan Pal and accused-Phani Pal rushed to the first floor of their house and Phani brought out the gun belonging to his father Golok, and Niranjan took out bows and arrows. They came on the balcony of the first floor room and accused-Phani aimed at Brindaban. So did Niranjan with his bow and arrow. Neither the gunshot nor the arrow struck the target. Phani once again loaded the gun and fired another shot aiming at Bhanumati, wife of Brindaban Pal (hereinafter referred to as the 'deceased'), who was then engaged in sweeping the courtyard. The bullet struck on her back. She fell down. At this stage two sons of Brindaban, Suchand and Ratan, P.Ws. 5 and 4 respectively together with Brindaban rushed out of the house and raised hue and cry. Before the villagers assembled, all except accused-Phani, left the house. Phani was still standing on the balcony of the first floor room with the gun in his hand threatening the villagers with dire consequences in case they proceeded further. As the assemblage outside the house grew larger, accused-Phani fled away and the villagers entered into the house. By that time Gouribala (P.W. 2), daughter of Brindaban, carried the injured body of Bhanumati on the verandah of their house from the courtyard. The villagers who assembled there found Bhanumati in injured condition and also heard from her that she was killed by gunshot made by accused-Phani Pal. Brindaban rushed to the police station and lodged the F.I.R. at about 8.30 a.m. police arrived at the spot and arranged for sending the injured Bhanumati to the local Binpur Primary Health Centre with the help of local Chowkidar. There deceased-Bhanumati made a dying declaration before the doctor who reduced the same into writing in the presence of Brindaban Pal. As the condition of the patient Bhanumati deteriorated she was taken to Jhargdram Hospital where she succumbed to her injuries. The case was instituted against Gokol Pal and his two sons, Phani Pal and Niranjan Pal. There were two more persons Narendra Patra and Swaran Dutta who were also implicated in this case and all these five were named in the F.I.R. Before the charge-sheet was submitted on 27-2-1979, Golok Pal died on 8-4-1978. Therefore, only four persons were committed to the Court of Session. Here charges under Ss. 302/34 and 307/34, I.P.C. were framed against all the four accused persons; and accused-Phani Pal was further charged under S. 25(1)(a) of the Arms Act. The charges as above were framed on 27-8-1980. But the complainant party moved the Hon'ble High Court on 5-11-1981 in Criminal Revision Case No. 2270/81, the four accused persons were charged further under S. 447, I.P.C. on 2-2-1982. Before trial of the case started, accused-Narendra Patra died and the case against him was filed on 20-1-1983. Thus the case remained with only three persons viz. Phani Pal, Niranjan Pal and Swaran Dutt. They have faced trial for charges under Ss. 302/34, 307/34 and 447, I.P.C. Besides the above charges a further charge under S. 25(1)(a) of the Arms Act was framed against accused-Phani Pal.
(3.) In order to further its case, prosecution examined 21 witnesses, while accused persons who pleaded innocence and false implication examined two witnesses. Their stand was a fence was already in existence inside the courtyard. On the date and time of occurrence, the informant, his sons and some others went to uproot the fence. Only Golok Pal was present and he tried to resist. As he was about to be assaulted he rushed to the first floor. But Brindaban's sons chased him. In the meantime Brindaban and the deceased broke open the lock of the ground floor room of Golok's portion and collected valuables from that room. On the first floor Golok picked up his gun to save himself and made a blank shot from the first floor and he loaded the gun for the second time and at that stage the sons of Brindaban and his associates started a scuffle with him and in course of that a shot was accidentally fired which hit the deceased on the back when she was coming out of the first floor room of Golok.;