Joymalya Bagchi, J. - (1.) The appeal is directed against the judgement and order dated 21st December, 1992 passed by the learned Additional Sessions Judge, Barasat, North 24-Parganas in Sessions Trial No. 5 (12) 91 convicting the appellants for commission of offence punishable under Sections 302/149 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay fine of Rs.2000/-, in default, to suffer rigorous imprisonment for one year more. They are also convicted for commission of offence punishable under Sections 147/149 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year only, both the sentences to run concurrently.
(2.) The prosecution case as alleged against the appellants and other accused persons is to the effect that on 29th May, 1984 at about 8:00 A.M., Mohar Ali Mollah (PW3) and his brother, Johar Ali Mollah, the victim along with other villagers being members of Krishak Samity went to recover Govt. Khas land which was under the occupation of some other persons who were carrying on pisciculture therein. As a result there was an altercation between the two groups. The members of the Krishak Samity wanted the water from the land to be drained out. A bomb was exploded. In the meantime, the members of the Krishak Samity started retreating. At that time, Johar Ali Mollah, the victim was chased by the accused persons and he fell down in the water of bheri no.1. Appellant no.2, Badsha Sk. held the victim whereupon the appellant no.3, Bablu Mondal pierced a ballam in his abdomen. Appellant no.1, Monsur Ali Mondal fired at the victim from a musket. Other accused persons dragged the victim and the members of the Krishak Samity ran away. As a result of such injuries the victim, Johar Ali Mollah expired. Over the issue, PW3, Mohar Ali Mollah, brother of the victim lodged a written complaint at the police station naming eighteen accused persons including the appellants. FIR was registered at Haroa Police Station being Case No.12 dated 30th May, 1984 under Sections 147/148/364 IPC and Section 9(b) of the Indian Explosives Act. In conclusion of investigation, charge-sheet was filed against the appellants and other accused persons. The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Barasat for trial and disposal. Charges were framed under Section 302 read with Section 149 IPC and under Sections 147/149 of the Indian Penal Code against eighteen accused persons including the appellants. The appellants and other accused persons pleaded not guilty and claimed to be tried. In course of trial, prosecution examined 11 witnesses and exhibited a number of documents. The defence of the appellants and other accused persons was one of innocence and false implication. It was their specific defence that the victim along with members of the Krishak Samity had illegally trespassed into the land and the victim had died in the melee. The accused persons have been falsely implicated in the instant case out of rivalry. In conclusion of trial, the trial Judge by the impugned judgement and order dated 21st December, 1992 convicted and sentenced the appellants, as aforesaid. However, the other accused persons were acquitted of the charges levelled against them.
(3.) Ms. Trina Mitra, learned Amicus Curiae, submitted that the evidence on record shows that one Gopal Guha was the owner of the bheri. She further submitted that the members of the Krishak Samity were seeking to forcibly take over the land on the plea that the said land was khas land which was illegally occupied by the said bheri owner. As a result, there was a fight between the two groups resulting in the death of the victim. Under such circumstances, the prosecution case cannot be said to have been proved beyond reasonable doubt. She further submitted that the appellants had not been identified by the so-called eyewitnesses and that the roles of the appellants have not been established beyond reasonable doubt. Evidence of Autopsy Surgeon rules out the possibility of piercing the victim with a ballam as no sharp cutting injury was found on the victim. She accordingly, prayed for acquittal of the appellants.;