- (1.) FACTS 1. 1 The facts reveal, on April 7, 2000 both Tissue and Mahanta along with two other persons being armed with firearms raided the office of the victim Shri bijan Kundu, a promoter in the said area. At that time Bijan was sitting with shyamal Mondal, Achintya Banerjee and Laxmi Manna. As per the written complaint made by one Jakir Hossain Mullick at the instance of the father of Bijan, the anti-socials not only shot Bijan but also exploded bombs before they fled away by auto rickshaw. The bullet struck the right shoulder of Bijan. The explosion caused injury to two other persons. The complaint was made at 10:20 p. m. on the said date whereas the incident occurred at about 08:40 a. m. 1. 2 The police arrested all the accused including Tissue and Mahanta and chargesheeted them. All of them pleaded not guilty and faced trial. The learned additional Sessions Judge, Alipure, 9th Court held Tissue and Mahanta guilty of the charges and directed them to suffer rigorous imprisonment for ten years and a fine of rupees five thousand each and in default to suffer further term of two years. The learned Additional Judge, having found no cogent or sufficiednt evidence, acquitted two other accused Dulal Parui and Amal Sarder and discharged them from their respective bail bonds.
(2.) EVIDENCE 2. 1 We have perused the judgment and order of the learned Judge. We have independently examined the evidence on record. Let us analyze the evidence so came out in trial in our own way. 2. 2 JAKIR jakir Hassain Mullick was the complainant who made written complaint to the police at the instance of father of Shri Bijan Kundu, the victim. He was a businessman, running bakery business. When he was in his factory on the fateful day he heard about the incident. He rushed to the office of Bijan and then took him to the hospital along with others and got him admitted there. He knew Achinta, an eyewitness but not Laxman Manna. He did not have any occasion to talk to the victim Bijan at the hospital or before. He did not hear anything about Tissue from Bijan. 2. 3 SATYAJIT CHAKRABORTY satyajit alias Partha was declared hostile. He did not see the occurrence. He deposed that he did not name the accused before the police. He also did not state to the police that he had heard the gunshot. He also could not identify the accused persons. 2. 4 BIJAN KUNDU 2. 4. 1 Bijan Kundu was the victim of the incident. He was promoter by profession. He was carrying on business under the name and style of M/s. A. B. Construction. Shyamal, Laxman and Achinta were sitting with him at his office when the appellants along with two others came to his office being armed with firearms. Tissue hit his left forehead with the butt of revolver for which he had sustained bleeding injury. Tissue then shot at his chest with the revolver which hit on his right shoulder. He lost his sense. He fell on the table. He had profuse bleeding. He later on learnt from one Sona Mukherjee that the accused had left the place after throwing bombs in front of his shop situated in the said premises. Thereafter Jakir came. Bijan told him that Tissue shot at him. Jakir and Achinta took him to A. M. R. I. Hospital. The bullet was still inside his left chest and could not be removed as per the doctor's advice. As a result he became paralytic below his chest. He could not move. He attended the nature's call through artificial device. He went to Velore thrice for treatment, but in vain. 2. 4. 2 Before the incident for about a year Tissue used to make phone call to him demanding money as and by way of an extortion, threatening him to kill. In cross-examination, Bijan deposed that his brother had a shop of Fast Food centre nearby. His brother Bacchu Kundu and Sona Mukherjee were in the shop at that time. The doctor after the medical examination opined that the bullet should not be removed as there was a possibility of death in case of such an attempt. He was a small promoter. He made only two constructions before the incident one in 1996 and other in 1998. He denied having refused to depose in this case or executed any bond to the said effect. He told about the incident to the doctors who treated him at ICCU. He did not hand over his wearing apparel to the police. The accused shot him at a distance of 2/3 feet. He did not report to the police that Sona Mukherjee had told him that the assailant had fled away after hurling bombs. He told the police that one of the assailants was Mahanta. He denied having been influenced by the police to name mahanta. 2. 5 PRANAB 2. 5. 1 Pranab Kundu alias Bachhu was the younger brother of Bijan. At the time of the incident he was in his shop at ground floor. He was standing in front of his shop at about 08:30 to 08:40 p. m. The incident took place on the back side of his shop in the said premises. An auto rickshaw came wherefrom four boys alighted being armed with firearms in their hands and enquired of Bijan from him. Before he could reply they went through the passage adjacent to the shop and entered the office room of Bijan. Within a short moment he heard the gun shot and saw two of the boys fleeing from the front side and the other two from the back side. He found his brother being brought by two persons. He found bullet injury on his right shoulder. He could identify Tissue and Mahanta and identified them in Court. His brother was first taken up to C. M. R. I. and then a. M. R. I. Bijan told him that out of four assailants Tissue shot at him in presence of three others. 2. 5. 2 Bacchu gave explanation for not rushing to the place of occurrence as according to him everything happened within a minute and he could not do anything. Initially, he did not name the persons before the police. 2. 6 DR. SUMAN GHOSH dr. Suman Ghosh attended the victim at A. M. R. I. hospital at about 09:20 p. m. On the said date Achinta made statement about the incident. According to him, there was no exit point of the bullet in the body. He supported the medical report given by him which was tendered as exhibit. He also deposed that the victim did not disclose the name of the assailants although he was conscious and oriented. 2. 7 DR. SUBHAS TODI dr. Todi also treated Bijon at A. M. R. I. He also stated that Bijon did not make any statement although he was alert, sound and conscious. 2. 8 the police officers who investigated into the matter and another doctor also deposed for the prosecution.
(3.) ANALYSIS OF EVIDENCE close analysis of the incident as came out in evidence reveals that the incident occurred within a very short span of time. Bacchu first saw the assailants alighting from auto rickshaw being armed with fire arms. They enquired of Bijan and then rushed to the office of Bijan and shot at him. Although Bijan claimed that he had bleeding injury on his forehead the medical report did not support the same. The factum of gunshot was proved. Infact, bijan is still carrying the bullet with him on his body and would have to probably live with the same throughout his life. It is true that Bijan did not name the assailants to the doctors. There might be two reasons for the same, achinta narrated the incident to the doctors in his presence or his mental framework did not permit such as he was possibly still under trauma specially when the doctors opined that the bullet could not be removed from his body as it would involve life risk. It is not unusual. A businessman while talking to the visitors was suddenly confronted and was shot. He became unconscious. Even if he gained consciousness he might be under trauma. A person carrying on business having his family including his wife would think twice to name the assailants before the police as it might cause further trouble. To come to his normal sense he would need sometime to adjust his mental framework. Hence, we do not find anything unusual if Bijan did not name the assailants to the police or the doctors contemporaneously. Similar was the case of Bacchu, the younger brother. He was also having a shop at the said premises. Obviously, he would think twice to name the assailants who might be known in the area for their anti-social activities.;