NADIRA PATHERYA, J. - (1.) THIS appeal has been filed against the order and judgment dated 20th December 2004 and 21st December 2004 passed by the Additional District and Sessions Judge, Fast Track, 2nd Court, Rampurhat, in Sessions Trial No.82/2002 arising out of Sessions Case No.35 of 1999 whereby and whereunder the appellants herein who are five in number have been convicted under Sections 148, 302/149 and 324/149 IPC. Pursuant to an order passed in 2009 the said appellants are on bail.
(2.) THE prosecution's case is as follows : - On 28th October, 1988 at about 7.00 a.m. the victim went to his maternal uncle's house for business and at about 7.30 a.m. the said victim along with Enjil (P.W.2) was returning from the maternal uncle's house when near the tailoring shop of Balaiuddin the accused appellants along with some other persons armed with bomb, sword, pipegun and knife attacked them. A shot from the pipegun was aimed at the victim but it missed its target. The victim took shelter in the grocery shop of Mojeswar wherefrom he was dragged out. Enjil (P.W.2) tried to resist Saharia the accused appellant no.1, at this time Bakkar the accused appellant no.4 assaulted him on his back with a knife and injured Enjil (P.W.2) fell down. The victim was thereafter dragged out of the shop and assaulted. Janbar threw a bomb at the victim, as a result whereof, the victim lost a finger of his right hand and some teeth. The said incident was seen by the de facto complainant, Angu Sk, at whom, too bombs were hurled. Therefore, he could not save the victim. After hurling bombs the accused appellants persons fled and the defacto complainant approached the victim and found him dead. Thereafter a complaint was filed with the Mayureswar Police Station and Mayureswar P.S. Case No.17 dated 28th October, 1988 was started. Investigation was undertaken and charge Sheet submitted against seven accused persons for commission of offence punishable under Sections 148/149/326/327/302 IPC. Makrob Ali and Kamruddin Sk. died and the case against them was filed. On framing of charge the said was read out and explained to the accused appellants who pleaded not guilty and sought to be tried.
(3.) IN all 13 witnesses were examined and documents exhibited. The accused appellants were also examined under Section 313, Cr.P.C and on appreciation of oral and documentary evidence by order/judgment dated 20th December 2004 and 21st December 2004, the appellant/accused persons were convicted under Sections 148, 302/149 and 324/149 IPC. From the said order of conviction, this appeal has been filed and order sought. Counsel for the accused appellants submits that there has been delay in sending the FIR by the I.O. to the Court of the S.D.J.M. It was sent only on 31st October, 1988 whereas the date of incident was 28th October, 1988 and the FIR filed on 28th October, 1988 at 8.02 hours. The inquest report has not been included in the paper book. The charge initially framed was under Section 307 but later amended by order dated 2nd December, 2004 to Section 302 IPC. P.W.1 is the defacto complainant who is an eyewitness to the incident. The FIR is to be sent to the Court of the S.D.J.M within 24 hours, i.e., by 29th October, 1988 when it should have been dispatched but, it was sent three days later and there is no explanation for the delay. In the written complaint there is mention of Kofitan Sk. and Misar Ali Sk. both of whom have not been examined. The charge was framed on 4th February, 2003 and was amended on 2nd December, 2004 and by virtue of such amendment, the name Enjil Sk. was included. Section 302/149 and 324/149 forms the basis of the order of conviction. Md. Rasul Baksh though a seizure list witness was not examined. Ziar Ali has also not been examined.;