- (1.) This appeal has been preferred against the order of conviction and sentence dated 25.03.85 passed by the learned Additional Sessions Judge, 24 Parganas, 11th Court at Alipur in Sessions Trial No. 2(1)84 arising out of Baruipur P.S. Case No. 39 dated 30.01.82 whereby he sentenced the accused persons to suffer R.I. for seven years each for the offence under Section 304 Part II of the I.P.C. read with Section 149 of the I.P.C. and to suffer further sentence of R.I. for one year each for the offence under Section 323 I.P.C. read with Section 149 of the Indian Penal Code. The case of the petitioners is that the above mentioned Criminal Case was started against them on the allegation that on 30.01.82 at about 3.30 p.m. the accused persons being armed with weapons assembled in the western part of the bastu of Dulal Mondal and started chopping off the branches of the pump trees and the fig trees. As Dulal Mondal protested against this act of the accused persons, there was a quarrel in between them and suddenly Nanda assaulted Dulal on his vault by a lathi which was there in his hand and when Sristridhar came to his rescue he was also assaulted. Biswanath Mondal was assaulted by Shayam Dhara by a lathi, when he tried to rescue Dulal and others. In the process Shayam Dhara inflicted an injury on the cheek of Biswanath Mondal. The accused persons also assaulted other persons and thereafter by pelting brick bats they left the place. The injured persons including Dulal was immediately taken to the Baruipur Police Station and where Biswanath Mondal lodged the F.I.R. On the basis of the written complaint Baruipur P.S. Case No. 39 dated 30.01.82 was started against the accused persons. During investigation the injured were sent to hospital, statements of the witnesses were recorded and some alamats were seized. After completion of the investigation charge sheet was submitted against the accused persons on 21.2.83. According to the appellants the defacto complainant and the witnesses were inimical to the appellants and there was a criminal case against the defacto complainant and others and out of the said rivalry the present case was falsely instituted against them. However, after considering the evidence on record the learned Court below was pleased to hold the accused persons guilty of the offences as mentioned earlier and convicted them accordingly. Being aggrieved and dissatisfied with the said order of conviction, present appeal has been preferred.
(2.) It has been alleged in this appeal that the Court below was not at all justified in holding the accused persons guilty of the offence. It has further been alleged that the learned Court below failed to appreciate that the witnesses were inimical to the accused person due to long standing rivalry and also due to the pending of earlier cases. They have claimed that the order of conviction is bad in the eye of law and as such same should be set aside.
(3.) I have heard the submission of the learned Advocate for the appellants as well as the learned Advocate for the State. It appears from the F.I.R. that there was a trouble in between the parties on 30.01.82 at about 3.30 p.m. over the cutting of some trees allegedly by the accused persons from the land of the deceased Dulal Mondal. The prosecution has further claimed that when Dulal Mondal and others tried to resist the accused persons, at that time they assaulted Dulal and others with lathi etc. The prosecution has further claimed that as a result of that Dulal sustained serious head injury and ultimately he died in the hospital as a result of the assault. The prosecution has further claimed that in the process, the accused persons also injured some other persons. So, prima facie onus lies on the prosecution to prove those things against the accused persons. In order to discharge that onus the prosecution, as it appears from the Lower Court Record, has examined in all 18 witnesses. Out of those witnesses, it appears that P.W.1 Biswanath Mondal, P.W.2 Srishtridhar Mondal, P.W.5 Sanyashi Haldar, P.W.6 Bijoy Mondal, P.W.8 Smt. Padma Haldar and P.W.10 Smt. Mira Mondal are the eye witnesses and also some of them sustained injuries as a result of the incident. I have carefully gone through the evidence of these witnesses. It appears that P.W.1 Biswanath Mondal, who is the defecto complainant in this case, has clearly narrated the incident in his evidence. He has stated in unequivocal terms that accused Nanda Das inflicted a lathi blow on the vault of Dulal. He has also stated that Nanda assaulted Sristidhar by his lathi. He further has deposed to the effect that accused Achinta also inflicted a lathi blow. According to him accused Shyam Dhara assaulted him by a lathi and when there was a scuffling Shyam Dhara caused injury on his left cheek. It appears that he has practically corroborated the entire prosecution case as made out in the F.I.R., in his evidence. There may be minor difference. in his version, but that does not appear to me to be serious at all. If we look into his evidence in chief as well as in cross-examination, then it will appear that he stated in no uncertain term that accused Nanda assaulted Dulal on his head by a lathi and the other accused persons also assaulted some others, the names of whom have already been mentioned by me earlier. The evidence of the P.W.1 has been aptly corroborated by the evidence of the P.W.2, P.W.5, P.W.6, P.W.8 & P.W.10. They all narrated the incident clearly in order to show that the accused persons at the time of occurrence formed an unlawful assembly with their common object of assaulting Dulal Mondal and others. I find nothing to disbelieve their statements. Learned Advocate for the appellant pointed out certain discrepancies in the evidence of the P.Ws. and alleged that the learned Court below was not justified in ignoring those discrepancies. I have perused the judgment of the learned Court below. It appears that the learned Court below offered sufficient reasons for ignoring those minor discrepancies. In fact, if we look into the discrepancies, as alleged by the learned Advocate for the appellant, then it will appear that those discrepancies are very minor in nature and it is only natural that those discrepancies will occur in the evidence of a person who was deposing after a considerable period from the date of incident. As such, I do not attach any importance to this argument of the learned Advocate for the appellant.;