- (1.) This revisional application is directed against an order of acquittal dated 7th March 2005 passed in Sessions Trial No.594 of 2003 (State of West Bengal vs. Natu Mondal & 5 Ors.) of charges under sections 342/302/506/324 of the Indian Penal Code read with section 34 thereof. The facts and circumstances of the case would appear from the written complaint lodged by Gunadhar, in the outskirts of whose teashop, the incident was alleged to have happened. The written complaint is in Bengali which when translated in English would read as follows:- "To The Officer-in-Charge, Shyampur Police Station, Sir, I, Sri Gunadhar Mondal, son of late Khagen Mondal, resident of village Mirzapur (Kala), within the territory of Shyampur Police Station in the district of Howrah, beg to state that I have a tea shop on the southern side of my dwelling house which is owned by me. On the last 16th August 1999 in the night in the verandha of my aforesaid tea shop 1) Ganesh Kayal, 2) Jadu Mondal, 3) Atul Das and 4) Bhuban Bag were playing cards. Mahadev Mondal, Dulal Mondal and my son Naba Kumar Mondal were watching the game. It was then around 10'O clock in the night I was preparing to close my shop. All on a sudden 1) Mantu Mondal, 2)Bhodu Mondal, 3) Sanat Mondal, 4) Natu Mondal, all sons of Habul Mondal, 5) Buro Mondal, son of late Prasad Mondal, all residents of village Mirzapur and 2/3 other unknown persons, armed with katari, bhojali, ballam and other sharp weapons intruded into my shop. They surrounded Ganesh Kayal and started assaulting him indiscriminately by katari, bhojali and ballam. Those who were playing the game as also those who were watching the same ran out of fear. My son Naba Kumar Mondal resisted the assailants whereupon Gora Mondal, another son of Habul Mondal retaliated by seeking to assault my son with a bhojali and, as a matter of fact, part of the bhojali had touched his thigh, as a result whereof he suffered a cut injury. Ganesh Kayal bleeding profusely fell down on the floor. Mantu Mondal then said "the rascal is alive. Cut down his throat." Bhodu Mondal then by his katari cut down both the neck and the throat of the victim Ganesh. My son and I were threatened by the assailants after we had closed our shop by showing us weapons "if this incident is divulged to anyone we shall finish you both and burn down your house". I somehow managed to sneak out of my house and met Shri Tarapada Kayal in village Malgachhi, who is the father-in-law of my child and narrated the whole incident to him. Tarapada Babu informed the matter to the villagers. I am an illiterate person. I can only sign my name. I narrated the whole incident which was written down according to my version by Shri Dinesh Mondal, resident of Rasulpur. Shri Dinesh Mondal, after reducing my version into writing, read out the same to me and finding the same to be strictly in accordance with my version I am signing this complaint. You are requested, Sir, to punish the accused persons after duly investigating the matter. Scribe : Shri Dinesh Mondal Humble petition of Son of Late Ashim Mondal Sd- Sri Gunadhar Mondal Vill- Rasulpur, P.O.-Shyampur, 17.8.1999" Howrah The complainant Gunadhar Mondal is the PW1, his son Naba Kumar Mondal is PW 2, Bhuvan Bag is PW3, Jadav Mondal is PW 9, Mahadev Mondal is PW 5, Dulal Mondal is PW 4. Gunadhar Mondal (PW 1), Naba Kumar Mondal (PW 2), Dulal Mondal (PW 4) and Mahadev Mondal (PW 5) turned hostile. The learned Trial Judge passed the order of acquittal because according to him "it is most unsafe to hold that this PW 3 by saying "five sons of Habul Mondal and one son of Prasad Mondal," wanted to mean the accused Santu Mondal, Bhodu Mondal, Sanat Mondal, Natu Mondal and Gora Mondal being the five sons of Habul Mondal of village Mirjapur and the accused Buro Mondal being the son of Prosad Mondal of the same village."
(2.) I would like to notice the entire evidence of the PW 3 Shri Bhuvan Bag for no other reason but to demonstrate the absurdity with which the evidence of the PW 3 in particular and the evidence both oral and documentary adduced by the prosecution in general was dealt with by him. PW 3 Bhuban Chandra Bag deposed as follows:- "I know Ganesh Kayal since deceased. Ganesh Kayal was killed, about five years back on the Dawa of the tea stall of Gunadhar. He was killed about 10.00 P.M. on the relevant day. At the relevant point of time, myself, Ganesh Kayal, the second of son Gokul Mondal and the son of Sukdeb Bag were playing cards on the Dawa of Gundhar's tea stall. Mahadeb, son of Rajen, Gunadhar and his son were witnessing our play at that time. At that time five sons of Habul Mondal, one son of Prasad Mondal and 2/3 others came there and killed Ganesh Kayal with the help of katari. At that time all those sons of Habul and the son of Prosad were known to me.
(3.) At present I am not in position to see well due to my age. I am now aged about more than 100 years. At present I am not in a position to identify all those miscreants. Due to fear we could not raise any protest at the spot. I do know whether any amongst us sustained injury at that time. I was interrogated by police. Xxn. I am wearing spectacles since about 15/20 years. (Cross-examination is deferred on prayer of the defence) I cannot speak properly. I also cannot understand all the matters. Whatever I have stated before I did not say those facts to anybody else. I also did not say anything to anybody else that at the relevant point of time I was playing cards and Ganesh was assaulted by any person.;