Joymalya Bagchi, J. - (1.) The appeal is directed against the judgment and order dated 26th August/29th August, 2013 passed by the learned Additional Sessions Judge, 3rd Court, Malda in Sessions Case No. 69 of 2010 [Sessions Trial No. 01 (a) of 2010] convicting the appellant for commission of offence punishable under Section 302 IPC and under Sections 353/34 IPC and Sections 186/34 IPC and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to suffer simple imprisonment for two years for the offence punishable under Section 302 IPC, to suffer rigorous imprisonment for two years and to pay fine of Rs.2,000/-, in default, to suffer simple imprisonment for six months for the offence punishable under Sections 353/34 IPC and to suffer rigorous imprisonment for three months and to pay fine of Rs.500/-, in default, to suffer simple imprisonment for one month for the offence punishable under Sections 186/34 IPC; all the sentences to run concurrently.
(2.) The prosecution case as alleged against the appellant and other accused persons is to the effect that ASI, Sanat Ghosh along with home guard, Subhas Mondal (P.W.3), NVF, Angad Sarkar (P.W.2), NVF, Nagen Mandal (P.W.21) and Md. Ainal Hoque (P.W.1) went for night mobile duty and raid duty from Ratua police station. Around midnight they went to the house of the appellant at Chandpur to conduct raid. They parked the jeep driven by Janardhan Rajak (P.W.13) on the metalled road and proceeded to the house of the appellant on foot. They reached the residence of the appellant. The appellant and his family members came out from the house. Sanat attempted to arrest the appellant and a scuffle ensued. He was pushed inside the room and hit over the head and neck by the appellant with a hasua. NVF, Nagen Mandal fired a bullet from his gun. The miscreants fled away from the spot. They informed the driver of the jeep to bring reinforcements from the police station. After a while other police officers arrived at the spot. The victim was found lying inside the room with bleeding injuries. He was taken to the hospital. After sometime he was declared dead. Over this incident, Subhas Mondal (P.W.3) lodged written complaint with the Officer-in-charge, Ratua Police Station resulting in registration of Ratua Police Station Case No. 33 of 2010 dated 24th January, 2010 under Sections 302/34/186/353 IPC and Section 9(b) of the Indian Explosives Act. In the course of investigation, the appellant and other accused persons were arrested and chargesheet was filed in the instant case. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 3rd Court, Malda for trial and disposal. Charges were framed under Sections 302/34 IPC, Sections 186/34 IPC, Sections 353/34 IPC and Sections 201/34 IPC against the appellant and other accused persons, namely, Bibi Mahmuda, Rashel Sk. @ Rashed, Bibi Khateja and Sk. Ibrahim. The appellant and other accused persons pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 25 witnesses and exhibited a number of documents. The defence of the accused persons was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 26th August/29th August, 2013 convicted and sentenced the appellant, as aforesaid. The other accused persons were also convicted and sentenced under Sections 353/34 and Sections 186/34 IPC. However, the appeal has been preferred by the appellant alone against his conviction and sentence.
(3.) Mr. De, learned Senior Counsel appearing for the appellant submitted that the prosecution has not proved by producing documentary evidence that the raiding party had entered the residence of the appellant to execute a lawful warrant. It is argued that the manner and course in which the alleged incident occurred as narrated by the prosecution witnesses is improbable as the police personnel viz. P.W.s 1,2,3 and 21 accompanying the victim, although armed, did not resist the assault on the victim. On the other hand, they ran away from the spot. Conduct of the aforesaid witnesses is most unnatural and, therefore, it is doubtful whether they were at all present at the spot. If the evidences of the said witnesses are not believed there is no direct evidence of assault on the victim by the appellant. It is also strange that the appellant and others were not arrested from the spot. Evidence of other witnesses with regard to the oral dying declaration is not reliable as there is no evidence that the appellant was in a fit state to make such statement. It is argued that no female police officer had accompanied the raiding party and the prosecution case, as coming from the mouths of the police personnel, is patently absurd and is liable to be thrown out. Accordingly, he prayed for acquittal of the appellant. Ms. Khan, learned amicus curiae adopted the submissions of learned senior counsel for the appellant.;