- (1.) This appeal and CRR No.610 of 2008 are both directed against the judgment dated 28 th January 2008 by which the learned Additional Sessions Judge, 1 st Court, Krishnanagar, Nadia held all the twelve accused persons guilty of the offence punishable under Section 304 Part II of the Indian Penal code read with Section 34 thereof as also under Section 324 read with Section 34 IPC in Sessions Case No.7(2) of 2004 corresponding to Sessions Trial No.III (Septermber) 2004. By an order dated 29 th January 2008 all the twelve convicts were sentenced to rigorous imprisonment for 10 years as also to pay fine of Rs.5000/-, in default to suffer further rigorous imprisonment for a period of six months each for the offence punishable under Section 304 Part II of the Indian Penal Code read with Section 34 thereof. All the twelve convicts were also sentenced to rigorous imprisonment for two years as also to pay fine of Rs.3000/- each, in default to suffer further rigorous imprisonment for a period of two months each for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code. All the sentences were however directed to run concurrently. The Sessions Case No.7(2) of 2004 originated out of Tehatta PS Case No.165 of 2003 dated 2 nd November 2003 under Sections 326/304 read with Section 34 of the Indian Penal Code and Sections 25/27 of the Arms Act respectively against the twelve appellants.
(2.) The case of the prosecution in the Sessions Case No.7(2) of 2004 is that on 2 nd November 2003 at about 6 A.M. in the morning during the period of Ramzan an altercation was going on between the appellant no.1 on the one hand and Mustabari Sk. and his son Patal Sk. (PW 7) on the other in connection with recovery of price of the jute sold and delivered by the latter. The appellant no.1 also known as Mustab appears to be an agent or a broker dealing in jute. During such altercation the appellant no.1 Mustab sought to assault the father and the son. Murtez since deceased, PWs.1 to 7 and one Jafar Ali Molla intervened and sought to prevent the parties from fighting. Enraged by such intervention the appellant no.1 and his followers being the rest of the appellants armed with deadly weapons pounced upon them. The PWs.2 to 7 and the said Jafar Ali Molla were severely beaten. So was Murtez. The injured persons were taken to Palashipara Hospital where they were given medical aid. Considering the critical condition of Murtez he was referred to Baharampur Hospital where he was declared dead. A written complaint was lodged at 14.45 hrs. on 2 nd November 2003. All the twelve appellants were charged under Section 302 read with Section 34 of the Indian Penal Code for having intentionally caused the death of Murtez Ali Mondal. They were also charged under Section 326 read with Section 34 of the Indian Penal Code for having caused grievous hurt by deadly weapons to Zakir Hossain, Taher Ali Mondal, Jafar Ali Mondal, Arman Mondal, Safiqul Mondal and Patal Sk. The learned Trial Judge ultimately held the appellants guilty of the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code instead of the offence punishable under Section 302 IPC. The learned Trial Judge further held the appellants guilty of the offence punishable under Section 324 read with Section 34 thereof instead of Section 326 IPC charged originally. The de facto complainant Samsul Haque preferred CRR No.610 of 2008 contending that the appellants should have been convicted as originally charged. With respect to the selfsame incident dated 2 nd November 2003 a counter case was lodged with the Tehatta PS on 29 th November 2003 against seventeen accused persons including Taher Ali Mondal (PW 2) who is the accused no.1, Samsul Haque Mondal (PW 1) who is the accused the no.2, Sarmen Ali Mondal (PW 3) who is the accused no.3 and Patal Sk. (PW 7) who is the accused no.14 in the aforesaid Tehatta PS case dated 29 th November 2003 which ultimately was registered as GR Case No.2724 of 2003 and tried vide Trial Case No. II of August 2004 which ended in a judgment and order of acquittal. The learned trial Court in recording the order of acquittal opined as follows:- "Though it is proved that PW 1 (Abdul Jabbar Malita) sustained injury in the same incident in which alleged accused Mortez also sustained injury and subsequently died, yet has not been proved that Mortez and others were the aggressors. It could not be proved by prosecution in the instant case that PW 1 exercised his right of private defence against the accused persons. Many of whom sustained injuries and one died. The accused persons in this case are entitled to get the benefit of doubt."
(3.) The de facto complainant in that case was one Raqibat Malita. He has challenged the order of acquittal in CRR No.1500 of 2008. It is however clarified that none of the revisional applications was pressed at the time of hearing of the appeal. Therefore subject-matter of consideration is only the appeal.;