G.R.Bhattacharjee, J. - (1.) Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this judgment as they arise out of the same judgment of the 3rd court of Additional Sessions Judge, Alipore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossain Chowdhury but convicted the accused Nasim @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by its order dated 31-8-92 sentenced both the accused Naso @ Nasim and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2,000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/- i.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- i.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this judgment.
(2.) It may be noted here that on an earlier occasion the trial court in a trial on the same charges and others passed judgment and orders of conviction and sentences in S.T. No. 1(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar @ Sanda Akhtar and Hossain Chowdhury were inter alia convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences in respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.I. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai, we are told, did not prefer any appeal against the conviction and sentences imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court. The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held in respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendment of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment in respect of the names of the places of occurrence in the concerned charges. In view of such amendment in the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered it proper, without entering into the merit of the prosecution case, to direct retrial of the case by the trial court in the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar Ali, a police constable in white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., in Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar Ali respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Singh, constable.
(3.) The direction of the Division Bench for retrial was couched in the following language :- "On the conclusion as above, we set aside the order of convictions recorded and sentences imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed in respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, if any, made under section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are in custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expeditiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody. The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected." Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehta and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.;