- (1.) This Appeal arises out of a Judgment and Order dated 25.4.2012 passed by the learned Additional Sessions Judge, 1st Court, Malda in Sessions Trial No. 12 of 2012 corresponding to Sessions Case No. 245 of 1997 arising out of Kaliachak Police Station Case No. 3 dated 5.11.1980 under Sections 147/148/149/341/324/326/364/302 and 34 of the Indian Penal Code whereby and whereunder the said learned Court was pleased to find the Appellants guilty of the offences punishable under Section 302/34 of the Indian Penal Code and convicted them under Section 235 of the Code of Criminal Procedure and, as a consequence, sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each. In default, to suffer simple imprisonment for a further period of 6 months each. He however also ordered that the period of detention already undergone by them, shall be set off against the term of substantive punishment so awarded. A written complaint was made by one Lakshman Chandra Mondal, son of Late Chandan Mondal resident of village Kupkundi, P.O. Bedrabad in the District of Malda wherein, while naming (1) Humayun Mia (son of Jamshed Ali Biswas); (2) Jamshed Ali Biswas; (3) Sentu Mia; (4) Mumtaj Ali; (5) Meghu Mia; (6) Eslam Mia; (7) Majed Ali; (8) Attaj Mia; and (9) Afzal Mia, he alleged that on 4.11.1980 at about 6 P.M., his brother Sishir Mondal was returning from the house of Jatin Karmakar of Tewaritola. The accused persons attacked him with various sharp weapons in front of the farm house of Jamshed Ali Biswas. He called out the name of the informant for help who, at the time, was returning from the field after cutting grass. Harish Mondal, son of Chakku Mondal, Sagen Mondal, son of Late Mahendra Mondal were also returning from the field after planting "Patal Lata". The three of them rushed and saw that the accused persons were assaulting the informant's brother mercilessly. Since they were armed with various weapons, they went to the nearby village from where, they were able to gather people and all of them went to the place of occurrence but on reaching there, they did not find the Respondents there and his brother, Sishir Mondal had also vanished. They searched him for the whole night and apprehended that Sishir Mondal had been taken somewhere to be killed.
(2.) It appears that out of the 9 accused persons named above, charges were framed only as against these Appellants who were put on trial but the others were not chargesheeted. These Appellants and one Majed Sk. were charged with the offence that on the 4th November, 1980, they had intentionally committed the death of Sishir Mondal in furtherance of a common intention.
(3.) Learned Additional Sessions Judge, 1st Court, Malda while dealing with the case, held the accused persons guilty under Section 302/34 of the Indian Penal Code but insofar as Majed Sk. was concerned, he directed that he could not be sentenced straightway without first giving him an opportunity to prove his date of birth as on the date of occurrence. He therefore directed that based on the result of the enquiry, on his date of birth, further consequences would follow in accordance with law.;