- (1.) On 16th October, 2000, a written complaint was lodged at 13.15 hrs. by Hasan Jamadar, alleging that at about 11.30 hrs. while the complainant and others were taking tea at the stall of Farman Gazi, four persons viz Jaharul Hq. @ Baro Mia, his younger brother Azizul Sk Dafadar also known as Choto Mia, Bablu Molla and Ayub Molla came to the aforesaid tea stall. Baro Mia drew a knife from the shop of Pagla Gazi; held the same at the neck of Kalam and threatened to murder him. The persons present at the tea stall including the complainant caught the knife. Baramia in the circumstances dropped the knife and took out instead a pipegun from his waist. Saukat, who was sitting by the side of the said Kalam sought to escape. He was shot at and he died at the spot. Kalam also sought to escape. Chotomia and the said Ayub chased him. He was caught and shot at by the said Ayub. Seeing the incident Roshan Jamadar ran for life. Chotomia shot a bullet targeting him. He as a result was injured. Thereafter all the four accused persons left the place of occurrence. They also took along the motor cycle of the victim Soukat. Kalam died on the way to hospital. A charge sheet was filed by the police against all the four accused persons under Section 302 and 379 read with Section 34 of the Indian Penal Code. The accused Baramia and the accused Ayub continued to abscond. The case was as such split up and the trial could proceed only against the accused Chotamia and Bablu Sk. for offences punishable under Sections 302, 379,307, 411 read with Section 34 of the Indian Penal Code, which culminated in an order of conviction against the accused Chotamia of all the aforesaid charges but the accused Bablu Sk. was acquitted altogether by a judgment dated 27th May, 2004 passed by the learned Additional Sessions Judge,5th Court, North 24 Parganas, Barasat. By an order dated 29th May, 2004, the convict Chotamia was sentenced to rigorous imprisonment for three years as also to pay fine of Rs. 1,000/- in default to suffer further simple imprisonment for a month for the offence punishable under Section 379 of the Indian Penal Code. He was also sentenced to rigorous imprisonment for three years as also to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for a month for the offence punishable under Section 411 of the Indian Penal Code. He was sentenced to imprisonment for life as also to pay a fine of Rs. 5,000/- in default to suffer further simple imprisonment for 5 months for the offence punishable under Section 302 of the Indian Penal Code and identical punishment was also awarded for the offence punishable under Section 307 of the Indian Penal Code. All the sentences were however directed to run concurrently. The said Chotamia preferred the aforesaid appeal being CRA No. 438 of 2004.
(2.) During the pendency of the aforesaid appeal, the accused Boramia and the accused Ayub were caught and tried and both were convicted by a judgment dated 22nd September, 2008 for the offence punishable under Section 302 and 307 and read with Section 34 of the I.P.C. By an order dated 23rd September,2008 they were both sentenced to imprisonment for life for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. No separate sentence for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code was however passed. The convict Ayub Ali has preferred the aforesaid appeal registered as CRA No. 711 of 2008 and the convict Baramia has preferred the aforesaid appeal registered as CRA 733 of 2008 against the judgment and order dated 22nd September, 2008 and 23rd September, 2008 respectively. This is how three appeals have come up before us arising out of the same transaction.
(3.) The trial was held in two parts. The first part of the trial ended in 2004 and the second part of the trial ended in 2008. Therefore, for convenience we shall hereinafter refer to the conviction made in 2004 as the first part and the conviction made in 2008 as the second part. 28 witnesses were examined in the first part. 28 witnesses were also examined in the second part. However, P.W.20 Barkat Koyal and P.W.27 Abdul Masud Molla examined in the first part were not examined in the second part. The said Barkat Koyal relatively was an insignificant witnesses. He merely deposed he had a motor cycle repairing shop and one Sahajuddin Molla had given a motor cycle to him for repairing. The said Abdul Masud Molla was a seizure list witness. The rest 26 witnesses, examined in the first part, were also examined in the second part. Two witnesses namely Harendra nath Saha ( P.W.22) and Sailan Kr. Mondal ( P.W.24) both official witnesses were examined in the second part who had not been examined earlier. This is how the tally of the witnesses remained at 28 in both parts of the trial.;