DIBYENDU BHUSAN DUTTA, J. - (1.) THIS appeal is directed against the judgment of conviction and sentence passed on 6.3.90 by the ld. Additional Sessions Judge, First Court, Jalpaiguri in Sessions Trial No. 19 of 1988.
(2.) THE prosecution story may be stated as follows : On 5.9.84 corresponding to 19th of Bhadra 1391 B.S., one Nani Mondal of Bamantari village along with three of his co -villagers namely Premchand Sarkar (P.W.1), Dilip Sarkar and Gouranga Mondal went to Daukimari hut for the purpose of selling his jute. After the sale of the jute, Nani Mondal paid Rs. 80/ - to one Tufani Sarkar (appellant No. 2) in satisfaction of the previous loan. On receipt of the money, Tufani Sarkar left the hut at about 3 P.M. Nani Mondal and his three companions left the hut at about 5 -30 P.M. for home. Daukimari hut is about one and a half mile from Bamantari village. The kachha road of the village Bamantari that leads to the houses of Nani Mondal and his three companions passes by the side of the village well lying about 10 cubits to the east of that road. The primary school of the village lies to the north of that well at a distance of about a bigha and the pan -biri shop of Mantu Mondal (P.W. 16) lies opposite to the village well five cubits to the West of that Kachha road. After reaching the primary school, while Nani Mondal and his companions were approaching the well, Dilip Sarkar and Gouranga Mondal were ahead of Nani Mondal at a distance of about 19 -20 cubits and PW 1 was behind Nani Mondal at a distance of about 5 cubits. As soon as Nani Mondal reached near the well, Bablu Mondal (appellant No. 1) who was standing near the well, attacked Nani with a dao. About 20 -25 persons including the appellant Tufani were accompanying Bablu Mondal at that time. The appellant Bablu inflicted multiple blows upon Nani. PW 1 cried for help out of fear when Nani was attacked and attracted by his cries, about 150 persons of the village Bamantari assembled there and found Nani dead. PW 1 and 15 co -villagers remained as guard near the dead body of Nani. After some time Bablu Mondal again came to the place of occurrence along with 24 -25 persons to take away the dead body of Nani. PW 1 and other persons remaining at the spot to guard the dead body shouted for help whereupon Bablu and his associates fled away. Attracted by their cries, about 50 villagers again came to that place. In the meantime, it started drizzling and the dead body of Nani Mondal was removed to his house. The widow of Nani's elder brother was sent to Daukimari Colony to give information about the occurrence to Meghlal Sarkar (PW 7). Meghlal's brother, Bhasan Sarkar (PW 2) came to Dhupguri P.S. along with one Paresh Biswas and gave the information about the murder of Nani Mondal. The information was diarised by the then O.C. Ankesh Chatterjee under G.D. Entry No. 97 dated 6.4.84 (Ext. 6) at about 05 hrs and on being directed by the O.C., S.I. Rabindranath Seal (PW 18) rushed to Bamantari village with force on that very night at about 1. A.M. He visited the place of occurrence and did not find the dead body of Nani Mondal which was already removed to his house. He came to the house of Nani Mondal, asked PW 1 to go to Dhupguri P.S. and give his version of the occurrence. Accordingly, PW 1 along with Dilip Sarkar, Gouranga Mondal and Premchand Mondal (PW 9) came to P.S. and gave his statement which was recorded by the then O.C. Ankesh Chatterjee and was treated as FIR (Ext. 5). Its corresponding G.D. Entry No. is 103 dated 6.9.84 (Ext. 9). On the basis of this FIR, Dhupguri P.S. case No. 3 dated 6.9.84 was registered. The O.C. entrusted the investigation of the case to PW 18 and sent a copy of the FIR Ext. 5 along with the necessary endorsement to PW 18 when he was at the place of occurrence. PW 18 held the inquest over the dead body of Nani Mondal in the house of Nani and sent the dead body through constable Balun Ch. Roy (PW 12) for post -mortem examination by Dr. Biswapati Satpathi (PW 11). During investigation, PW 18 prepared a sketch map of the place of occurrence (Ext. 7) and recovered and seized certain articles under three separate seizure lists (Exts. 1, 2 and 3) from three different places namely the p.o., the shop of PW 16 and the bushes of the house of the appellant Bablu Mondal. The articles seized from the p.o. consisted of a jute spring (Mat Ext. I), bamboo pole (Mat Ext II), hawai chappal (Mat Ext III), wrist watch (Mat Ext IV), blood -stained earth (Mat Ext V) and a tooth (Mat Ext VI). Those seized from the shop of PW 16 consisted of a shirt (Mat Ext VII) and hawai chappal (Mat Ext VIII). The articles seized from the house of the appellant Bablu, on the other hand, consisted of a spade (Mat Ext IX), two ballams (Mat Ext X), and a hasua (Mat Ext XI), PW 18 produced PW 16 on 10.9.84 before the Judicial Magistrate (PW 14) for recording his statement under Section 164 Cr.P.C. (Ext 4). PW 18 also seized under the seizure list (Ext 8) the victim Nani's garments (Mat Ext XII) on 7.9.84 which were handed over by the doctor (PW 11) after post -mortem examination. PW 18 made over charge of investigation on 17.2.85. The case was next investigated by S.I., R.K. Dutta and it was handed over to the O.C. Sukumar Sarkar on 28.4. 86 who endorsed the case to S.I.D. Ghosh (PW 15) who finally submitted the charge -sheet on 25.6.86 against the two appellants as well as 14 others under Sections 302, 149 and 120 -B, IPC.
(3.) ALL the 16 persons including the two appellants sent up by the police faced the trial on three counts of charges under Section 302 read with Section 149 IPC for their allegedly having committed the murder in prosecution of the common object of causing murderous assault on Nani Mondal, under Section 148 IPC for their allegedly having formed an unlawful assembly armed with deadly weapons and also under Section 12013, IPC for their allegedly having entered into a criminal conspiracy for murdering Nani Mondal. The Trial Court, upon consideration of the evidence and other materials on record, came to the following findings. The appellant Bablu Mondal formed an unlawful assembly along with his associates numbering about 20 -25 including the appellant Tufani Sarkar and, in prosecution of the common object, caused the murder of Nani Mondal by inflicting multiple injuries on his person with a dao. The appellant Bablu Mondal was armed with a dao which is a deadly weapon within the meaning of Section 148. Both the appellants and their associates hatched a conspiracy for committing murder of Nani Mondal. The materials on record are not sufficient to connect the remaining 14 accused persons with any of the offences mentioned above beyond any reasonable doubt. In view of the aforesaid findings, the Trial Court found the appellant Bablu Mondal guilty of the offences punishable under Section 302 read with Section 149 and under Sections 148 and 120B, IPC, the appellant Tufani Sarkar guilty of the offences punishable under Section 302 read with Section 149, and also under Sections 147 and 120B of IPC and convicted and sentenced each of them to suffer imprisonment for life for the offence under Sections 302/149 and also to pay fine of Rs. 10,000/ - I.D. to suffer R.I. for two years and also to suffer imprisonment for life for the offence under Section 120B and the appellant Bablu Mondal to suffer RI for two years for the offence under Section 148 and the appellant Tufani Sarkar to suffer R.I. for one year for the offence under Section 147 IPC with the directions that all the sentences would run concurrently. The remaining 14 accused persons were found not guilty, of the offences with which they stood charged and were acquitted thereof. Hence, this appeal at the instance of two convicts namely Bablu Mondal and Tufani Sarkar. ;