- (1.)These appeals arise out of the common Judgment of the High Court of Calcutta in Criminal Appeal No.428 of 2005 which was preferred by Nasir and Aftab together. The said Judgment was rendered on 05.02.2010 in Death Reference Case No.2 of 2005 in Sessions Case No.79 of 2002 as well as Criminal Appeal Nos.247 of 2005, 377 of 2005, 425 of 2005 and 428 of 2005. The Appellant in Criminal Appeal Nos.1240-41 of 2010 is Mohd. Jamiludin Nasir (hereinafter referred to as 'Nasir'). The Appellant in Criminal Appeal Nos.1242-43 of 2010 is one Aftab Ahmed Ansari (hereinafter referred to as 'Aftab').
(2.)The Sessions Case was tried by the learned Judge XIIth Bench, City Sessions Court at Calcutta in Sessions Case No.79 of 2002. The FIR was registered on 22.01.2002 in FIR No.19 for offences under Sections 121, 121A, 122, 120B, 302, 333, 427 and 21 Indian Penal Code, 1860(hereinafter referred to as 'IPC'), as well as Sections 25(1B)(a) and 27 of the Arms Act, 1959(hereinafter referred to as 'Arms Act'). The FIR was registered at 06.36 a.m. The date and time of the occurrence was noted as 22.01.2002, 06.30 a.m. The General Diary (hereinafter referred to as 'G.D.') entry number was 1889 in the Shakespeare Sarani Police Station. The place of occurrence was noted as in front of the American Centre, 38H, Jawaharlal Nehru Road, which was stated to be located 11/4 km North-West of the Police Station. The name of the Complainant was Shri Barun Kumar Saha. According to the Prosecution, as many as 17 accused were involved in the offence, out of which only 9 faced Trial and from the remaining 8, there were 6 absconders out of whom one is now facing Trial and the remaining 5 continue to remain absconding. Two of the offenders, namely, Zahid and Salim died in an encounter on 27.01.2002, at a place called Hazaribagh, that is how 9 accused alone came to be tried in the Sessions Case No.79 of 2002. By a Judgment dated 26.04.2005, the Trial Court found A1-Mohd. Jamiludin Nasir, A2-Adil Hassan, A3-Rehan Alam, A6-Musarrat Hussain, A7-Nushrat Alak, A8-Aftab Ahmed Ansari and A9-Shakir Akhtar guilty of charges under Sections 121A, 121, 122 of IPC and Sections 302, 307, 333, 467, 471 and 468 IPC read with Section 120B of IPC. They were also found guilty of the offences under Sections 25(1A), 27(2), and 27(3) of the Arms Act read with Section 120B of IPC. The trial Court in its Judgment ultimately convicted A1- Jamiludin Nasir, A2-Adil Hussain, A3-Rehan Alam, A6-Musarrat Hussain, A7-Hasrat Alam, A8-Aftab Ahmed Ansari and A9-Shakir Akhtar and acquitted A4-Mohd. Shakeel Mallick and A5-Patel Dilip Kumar Kantilal of all the charges framed against them and were set at liberty forthwith if not required in any other case. Thereafter, by its order dated 27.04.2005, imposed the sentence of death for the offence under Section 27(3) of the Arms Act as mandated under the said provision, sentenced them to death for the charge under Section 121 IPC apart from other sentences of imprisonment for offences under Sections 121A, 122, 302 read with 120B, 307 read with 120B, 333 read with 120B, 467 read with 120B, 471 read with 120B and 468 read with 120B of IPC 25(1A), 27(2) and 27(3) of the Arms Act read with 120B IPC. The trial Court held that all the convicts who were found guilty were to be hanged till death subject to confirmation by the High Court and all the sentences to run concurrently.
(3.)By the impugned Judgment, the High Court acquitted A2-Adil Hussain, A3-Rehan Alam of all the charges. In so far as A6-Musarrat Hussain, A7-Nushrat Alak and A9-Shakir Akhtar are concerned, the Court acquitted them of the offence of waging of war but convicted them only for the offences under Sections 467 read with 120B, 468 read with 120B and 471 read with 120B IPC and thereby imposed a lesser sentence. As far as A1-Mohd. Jamiludin Nasir and A8-Aftab Ahmed Ansari are concerned, the High Court confirmed their conviction, as well as the sentence imposed by the trial Court on all counts. While A1-Nasir and A8-Ansari have come forward with the above appeals, the State has filed Criminal Appeal Nos.1244 to 1247 of 2010 as against that part of the Judgment of the High Court which modified the conviction and sentence in respect of A6- Musarrat Hussain, A7-Hasrat Alam and A9-Shakir Akhtar. Though, the above appeals were also posted along with the present appeals, which were being disposed of by this Judgment by our order dated 23.04.2014, we have de-tagged the said appeals for want of time. We are, therefore, now concerned only with the appeals filed by Nasir and Aftab. One other fact to be mentioned is that the acquittal of A4-Mohd. Shakil Mallick and A5-Patel Dilip Kumar Kantilal by the trial Court was not even challenged by the State before the High Court.