S.N.MALLICK, J. - (1.) THE instant Criminal Appeal has been preferred by the seven petitioner/appellants namely (1) Sagar Bhuinya (2) Dilip Dhanuk, son of late Hira Dhanuk (3) Dilip Dhanuk (II) alias Pagla Dilip, son of late Chandrapal Dhanuk (4) Chunnu Dhanuk (5) Munnu Dhanuk (6) Pradip Dhanuk (7) Manju alias Monoj Dhanuk who have been found guilty under Section 302/34 I.P.C. as per Judgment dated 20.9.94/22:9.94 passed in Sessions Trial Case No. 1(6) of 1994 in which the appellant No. 4 Chunnu Dhanuk has been sentenced to death and the rest have been sentenced to rigorous imprisonment for life and to pay a fine of Rs. 10,000/ - each in default to suffer further R.I. for one year each. The appeal and the death reference have been heard together by this Court and will be governed by the present Judgment.
(2.) FROM the Judgment and the materials on record it appears that the Judgment and the order of conviction passed by the Trial Court is based on direct evidence given by the alleged eye -witnesses, the medical evidence and the evidence given by the police officers including the I.O. The learned Additional Sessions Judge to support the death sentence imposed upon the appellant No. 4 Chunnu Dhanuk has been given special reason which may be quoted below : "The crime to receive death sentence must be of an uncommon nature. After giving maximum weightage to the mitigating circumstances, I am of opinion that sentence of imprisonment for life is inadequate in case of Chunnu. Special reason means some compelling circumstances. Here special reason is that Baldeo was done to death in presence of his mother, wife, sister and brother. Chunnu hacked him to death. Other convicts had hockey sticks with which they had assaulted Baldeo. Not only that. Then Baldeo was dragged to the ground near Shiba temple and his dead body was thrown there. The overt acts of Chunnu were proved by the eye -witnesses... .....Here the diabolically conceived murder was cruelly executed under the leadership of Chunnu with a chopper in hand. Having regard to the weapon he used, the manner of its use by him the horrendous features of the crime and the helpless state of the victim at that hour of night death sentence to Chunnu is warranted..... Death sentence to this convict is proper because of this cold blooded murder...... The number of injuries caused show the aggravating circumstances."
(3.) MR . Dutt the learned Counsel appearing for all the appellants has submitted that the impugned Judgment, order of conviction and sentence passed by the learned Additional Sessions Judge cannot be sustained in law because in short the same is based on doubtful evidence, non -application of mind to glaring inconsistencies and contradictions in the evidence of the so - called eye -witnesses and the missing links in the whole prosecution story which has not at all been considered by the Trial Court. Before considering the submissions made on behalf of the appellants by Mr. Dutt it would be helpful to note the prosecution story. On 5.5.92 in the evening the victim, one Baldeo Mullick of 30/C Ekbalpur Lane, Calcutta left his residence to attend a marriage ceremony in the locality but did not return home till late night. On 6.5.92 in the early hours at about 2.00 a.m. P.W.5 Gujuria Devi, mother of Baldeo asked P.W.3 Suraj Mallick to search for him. P.W.4 sister Lachhmi Debi, P.W.5 mother Gujuria and P.W.7 Munni Debi, wife of Baldeo accompanied him. While searching for Baldeo P.W.3 Suraj found at about 02.10 hours near a Pan shop at 8, B.K. Road Baldeo being assaulted by Chunnu, Munnu, Dilip, Pradip, Sagar, Manju and 2/3 others names not known to him but all residents of C.M.C. Staff quarters area 12/1, Mayurbhunj Road by means of chopper and hockey sticks and thereafter causing severe injuries to his brother the assailants dragged Baldeo and left him on the open land near the complex of C.M.C. Staff quarters (vide G.D.No.357 at 02.35 hours dated 5.5.92 recorded by the Ekbalpur P.S.) which is made a part of the formal F.I.R. as per Ext.6/1 being drawn up on the basis of the subsequent written complaint of Suraj as per Ext.6. In the formal FIR as per Ext.6/1 it is noted that the occurrence was reported as per statement of the P.W.3 Suraj on 6.5.92 at 11.20 hours. It is the prosecution case that seeing the occurrence the P.W.3 Suraj rushed to Ekbalpur P.S. and reported the incident which was recorded in the above G.D. entry. Thereafter, P.W.15 the S.I. of Police attached to Ekbalpur P.S. with force came to the place of occurrence and found the body of the victim lying in pool of blood on the ground before a Sibha temple at 12/1, Mayurbhunj road. Thereafter, P.W.15 the S.I. N.K. Dutta the I.O. of this case took the victim to Sambhu Nath Pandit Hospital where he was declared dead. On the above incident Ekbalpur P.S. Case No. 98 dated 6.5.92 against the appellants was started under Section 302/34 of the Indian Penal Code. On 17.3.93 the police submitted charge -sheet against the present appellant under Section 302/34 I.P.C. and the case was committed to Sessions Court on 10.6.94. In course of Trial the prosecution examined 15 witnesses to substantiate the charge under Section 302/34 framed against the appellants to which they pleaded not guilty. The defence has been, as it appears -from the trend of cross -examination, that they have been falsely implicated in this case as they protested against the anti -social activities of the deceased and the members of his family including their clandestine dealing in Narcotic Drugs and Psychotrophic Substances.;