- (1.) This criminal appeal is directed against the judgment and order dated 21st May, 1985 passed in Sessions Trial No. 7 of 1985 corresponding to Sessions Case No. 208 of 1984 by learned Additional Sessions Judge, Asansol convicting accused Baro Naru and Haradhan Pal under Sections 306/34 of Indian Penal Code and sentencing them thereunder to suffer R.I. for a period of five years and to pay a fine of Rs.1,000/- in default to suffer R.I. for a further period of six months.
(2.) At the very outset it is to be recorded that charge-sheet in connection with this case was submitted against the four accused persons. The case was filed against two accused persons as they could not be arrested. Two accused persons faced trial and convicted. One accused, namely, Baro Naru died during pendency of appeal. Only the appellant Haradhan Pal @ Chhoto Naru is in custody and at his instance this appeal stands at present. Factual background in a nutshell is that on 27.4.1981 at about 8/8.15 a.m. Ajoy Kr. Pandey was proceeding towards the house of accused Bijoy, since absconding at Nayabasti. At that point of time he was attacked by accused persons, namely, Haradhan/appellant, Baro Naru, Bijoy and Gupteshwar (Bijoy and Gupteshswar since absconding.) They hurled bombs aiming at Ajoy and as a result Ajoy sustained bomb injury at his left leg as well as on the chest. His youngest brother Bharat Pandey rushed to the place of occurrence hearing explosion of bombs but the accused persons chased him away by hurling bomb aiming at him too. The victim Ajoy was subsequently taken to IISCO Hospital at Kulti where it was found that he had a shattered compound fracture in left leg and burn injury on the chest. The left leg of Ajoy was disarticulated from the knee joint. He was treated first at Kulti Hospital and thereafter at Burnpur Hospital at IISCO for a total period of fourteen months. Ajoy got an artificial limb subsequently. Accused persons, namely, Baro Naru and Haradhan Pal @ Chhoto Naru faced trial on the alternative charges under Sections 307/34 and 326/34 of IPC. After full trial, learned Additional Sessions Judge, Asansol convicted them under Sections 326/34 of IPC and passed the impugned sentence. Mr. Manjit Singh, learned Counsel appearing for the appellant has contended that the evidence has not been properly appreciated by the learned Additional Sessions Judge, Asansol. The first information report (Ext. 1) on which the learned Court below relied upon cannot be treated as first information report under Section 154 of the Code of Criminal Procedure, 1973 in view of the fact that before recording the oral statement of Bharat Pandey as first information report on 27.4.1981 at 10.20 a.m. at 9 a.m. on that day on receipt of a telephonic information general diary under Entry No. 796 dated 27.4.1981 was registered by O.C. of Kulti P.S. and in pursuance of such general diary Sub-Inspector of Police Shri S.P.Mukherjee had been to the spot with force. He seized articles i.e. bombs, blood stained grass and stone, iron rod, cycle chain etc. and thereafter prepared the sketch map of the place of occurrence. It is, therefore, his contention that the investigation of the case was started long before receipt of oral complaint as made by Bharat Pandey but the learned Court below has failed to appreciate the said matter and has arrived at an erroneous decision holding the Ext. 1 as first information report. There was no eye witness. Bharat Pandey, elder brother of victim Ajoy Pandey was a chance witness and even then the learned Court has relied upon the evidence of Bharat to arrive at a finding against the appellant. It is his further contention that Bharat Pandey did not accompany the victim to hospital though it has been claimed by the prosecution that he was present at the spot and witness the incident resulting in injury on the person of his brother Ajoy Pandey. If he was present at that material point of time, he should have been to the hospital along with the victim when the victim was removed to the hospital from the spot. Mr. Singh, learned Counsel appearing on behalf of the appellant has contended further that it was a free fight. I.O. has claimed that he examined the victim after five months but the victim has stated that he was not examined by I.O. One boy aged about 8/9 years was a vital witness but he was not examined by the prosecution. The impugned judgment and order of conviction is bad in law and against the fact and materials-on-record and as such the same may be set aside and quashed.
(3.) It Is submitted by Mr. Singh that appellant is in custody for a period of three years two months and fifteen days as on 21.9.2010. The Court may consider the period of custody of the accused/appellant, in case the order of conviction is affirmed. Mr. Swapan Kumar Mullick, learned Counsel appearing on behalf of the State has contended that the impugned judgment is based on sound reasoning and the same may not be interfered with. He, at the same time, submitted that State has no objection if the Court considers the period of custody of the appellant/accused and pass necessary order.;