- (1.) The appellants/accused Rashid Alam @ Gabbar and Trisha Roy have filed these two separate appeals (Criminal Appeal No. 232 of 2004 and Criminal Appeal No. 129 of 2004 ) aggrieved by their conviction and sentence passed in S.T. No.4(3) 2002 by the Additional Sessions Judge, Fast Track Court, Alipore, vide a judgment and order dated 5th February, 2004 and 6th February, 2004. THE appellant/convict Rashid Alam @ Gabbar has been found guilty for having committed offence under Section 302 read with Section 120B of the Indian Penal Code and for having committed offence under Section 201 read with Section 34 of Indian Penal Code and also for having committed offence under Section 120B of the IPC and he has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 5000/- (five thousand) and in default to suffer rigorous imprisonment for a period of six (6) months. He has been also sentenced to suffer rigorous imprisonment for four (4) years and to pay fine of Rs. 2000/- (two thousand) and in default to suffer rigorous imprisonment for a further period of two (2) months for committing the offence u/s 201/34 of I.P.C.
(2.) He is also sentenced to suffer rigorous imprisonment for five (5) years for committing the offence u/s 27 of Arms Act and to pay fine of Rs. 2000/- (two thousand) and in default, to suffer rigorous imprisonment for a further period of two (2) months, and further sentenced to suffer rigorous imprisonment for three (3) years and to pay fine of Rs. 1000/- (one thousand) and in default, to suffer rigorous imprisonment for a further period of one month for committing the offence u/s 25 (1B) (a) of Arms Act. All the sentences were ordered to run concurrently. The appellant-convict Trisha Roy has been found guilty of having committed the offence u/s 120B of I.P.C. relating to the offence of murder and has been sentenced to suffer imprisonment for life and also to pay fine of Rs. 5000/- (five thousand) and in default, to suffer simple imprisonment for a period of six (6) months. She has been also sentenced to suffer simple imprisonment for four (4) years and to pay fine of Rs. 2000/- ( two thousand) and in default, to suffer simple imprisonment for two (2) months for the offence u/s 201/34 of I.P.C. Both the sentences to run concurrently. In a nutshell, it is the prosecution case that the deceased Sandip Julka @ Banti and the appellant/accused Trisha had a love affair which continued even after Banti got married, but subsequently Trisha (appellant/accused) developed relationship with one Ranvijay Singh Rathore (absconding accused) who was also the friend of Sandip Julka @ Banti (deceased) and did not approve Banti continuing the relationship with Trisha Roy and they decided to do away with Sandip Julka @ Banti. Therefore, on 22/05/2001 in the evening Ranvijay Singh Rathore (absconding accused), Trisha Roy (the appellant/accused), Rashid Alam @ Gabbar (appellant/accused) accompanied by co-accused Fatman and Sonam gathered in China Garden Restaurant at China Town. Ranvijay Singh Rathore called Banti at China Garden Restaurant. On receiving a phone call Sandip Julka @ Banti along with his friends Dipak Agarwal ( P.W.2), Sanjoy @ Kelo, Imtias @ Pappu, Firdouse Alam @ Guddu came to China Garden Restaurant where they were invited by Ranvijay Singh Rathore (absconding accused) to have dinner with them. After having dinner Ranvijay Singh Rathore (absconding accused) asked Banti (deceased) to accompany them and Banti was taken away by Ranvijay in his Maruti Car accompanied by Rashid Alam @ Gabbar, Fatman, Trisha and Sabnam @ Sonam. It is the prosecution case that after having abducted they took away Banti in the maruti car and Rashid Alam @ Gabbar at the instance of Ranvijay Singh Rathore shot him dead and threw his naked body on the eastern side of E. M. Bypass near Matangini Colony. At about 5.50 a.m. on 23/05/2001, B. N. Halder. A.S.I., Tiljala Police Station received R.T. information from A.S.I. Binoy Bose Highway Night Round Mobile Officer, that a naked body of a male person with injury was lying on the eastern side of E. M. Bypass. On receiving the said information, A.S.I. B. N. Halder rushed to the spot and found dead body of a male person on the eastern side of E.M. Bypass, having a deep wound on the right side of chest and also a similar deep wound on the back side of the left ear and noticed blood oozing out of the wounds. Therefore, he lodged an F.I.R. with the Officer-in-Charge, Tiljala Police Station, 24-Parganas (South), that some persons might have committed the murder of the unknown person whose dead body was lying at the spot where it was found and prayed for investigation after registering the case under Section 302/201 of I.P.C. He thereafter conducted inquest over the unknown dead body of the deceased male, aged about 34/35 years, after the inquest was completed and photograph of the dead body was taken in order to ascertain actual cause of the death, the dead body was sent to the Alipore Morgue Hospital for post-mortem examination.
(3.) In the early morning of 23/05/2001 between 2 hrs. to 3 hrs. P.W. 3 Narendra Kumar Julka was informed by Dipak Agarwal and others that Ranvijay Singh Rathore, Rashid Alam @ Gabbar and Fatman had taken his son Banti in the car of Ranvijay Singh Rathore and that Trisha and Sonam also accompanied them. He along with his son tried to trace Banti. They also went to the house of Sonam and learnt that Banti had been shot dead and after he was stripped off his wearing apparels, his dead body was thrown away. They also learnt that a maruti car was lying at Taltala Police Station which was identified to be the Maruti Car of Ranvijay Singh Rathore. The police officer also showed them wrist watch, pair of shoes and some photographs, they identified the articles as belongings of Banti. From Taltala Police Station they went to Tiljala Police Station. From Tiljala Police Station they were taken to morgue by an officer of Tiljala Police Station where they identified the dead body to be that of Sandip Julka @ Banti. IN course of investigation, police recorded statement of witnesses and caused arrest of all the accused persons. On completion of investigation, Charge sheet against accused persons was submitted under Section 302 read with Section 120B, 364, and 201/34 also under Section 25 (1B)(a) and 27 of the Arms Act. The appellant/accused along with others pleaded not guilty and claimed to be tried for the charges framed against them. During trial the co-accused Ranvijoy Singh Rathore absconded from lawful custody. The prosecution examined in all 22 witnesses in support of the case. The prosecution mostly relied upon circumstantial evidence to prove their case and on conclusion of the trial, the learned Trial Court found that Sandip Julka @ Bantis death was homicidal and that he was murdered by the appellants/accused in furtherance of conspiracy and they threw away his dead body in order to cause its disappearance with the intention of screening themselves from legal punishment and accordingly, convicted and sentenced them. Mr. Joymalya Bagchi, learned counsel appearing for the appellant/accused Rashid Alam @ Gabbar, has submitted that the entire prosecution case is based on circumstantial evidence. It is submitted that according to the prosecution, the appellant/accused was last seen together with the deceased and the other co-accused at China Garden Restaurant from where they left in a Maruti car belonging to Ranvijay Singh Rathore. It is submitted that Dipak Agarwal ( P.W.2) friends of the deceased, and the two waiters i.e. Sonam Gurung (P.W. 5) and Narrayan Thapa (P.W. 10), have been examined by the prosecution to establish its case. According to him, Dipak Agarwal (P.W.2) is not reliable, as in his evidence he has stated that whatever he had deposed in his examination-inchief was under the threat, coercion, pressure from police officer and so far as the waiters of China Garden Restaturant P.W. 5 & P.W. 10 are concerned, it is doubtful as to whether they were factually working as waiters at China Garden Restaurant on the date of incident as prosecution has not examined any person on behalf of owner of China Garden Restaurant to that effect. It is submitted that their evidence show that they are totally ignorant about the lay out of the restaurant and it is highly suspected that they could identify the accused persons, as lot of people visit the restaurant.;