- (1.) This Criminal Appeal is directed against the orders of conviction and sentences passed by ld. Addl. Sessions, Judge, Durgapur in Sessions Trial No. 7/1992. In all 20 (twenty) accused persons including the present six appellants were facing trial before the Trial Court on charges framed under Sections 147/148/149/302 I.P.C. The Trial Court convicted the six appellants/accused persons under the said sections and acquitted the remaining-14 accused persons of the charges framed against them. The Trial Court sentenced the appellants to imprisonment for life with fine of Rs. 4000/- each, i.d. to R.I. for six months for their conviction under section 302 I.P.C. Each of them was also sentenced to R.I. for one year with fine of Rs. 1000/- i.d. to R.I. for 2(two) months for their conviction under section 147 I.P.C. and also to R.I. for 2 years with fine of Rs. 2000/- i.d. to R.I. for 4 months for their conviction under section 148 I.P.C. No separate sentence for the conviction under Section 149 of I.P.C. was however imposed. All the substantive sentences were however, directed to run concurrently. Being aggrieved by the orders of conviction and sentences the appellants have preferred the present appeal.
(2.) The prosecution case, in short, as stated in the F.I.R. is that the informant Swapan Goswami came out of the house of Srutidhar (Nando) Majumdar (P.W. 2) after taking dinner at about 10-15 p.m. on 30th June, 1987 on the occasion of the marriage ceremony of the daughter of said Srutidhar while his elder brother Kalyan Goswami came out of the house of Srutidhar after finishing his dinner a little ahead of the informant Swapan Goswami. It is also stated in the F.I.R. that certain other invitees, such as, Debi Das Goswami, Asish Mukherjee, (P.W.5), Gurudas Banerjee (P.W.4), Shanti Majumdar (P.W.9), Bhim Mondal (P.W.8), Anil Roy Chowdhury and some others also came out of the house of Srutidhar after finishing their dinner a little before Kalyan Goswami. The allegation in the F.I.R. is that while Kalyan Goswami came near the shop of Dilip Roy Chowdhury (P.W.6) he was attacked with certain persons named in the F.I.R. including the present appellants who were armed with Lathi, Tangi and Bhojali and were waiting there by the side of the shop of Dilip Roy Chowdhury and this was witnessed by the informant Swapan Goswami and also Kanan Banerjee who was accompanying him at that time. According to the F.I.R. the appellant Sundar Chatterjee assaulted on the left side of the head of Kalyan with Bhojali and the appellant Ram Bilas assaulted on the right side with Bhojali and the appellants, Pranob Chatterjee, Rasa Pal, Done Pal and the accused Kiriti Chatterjee caught hold of Kalyan and the appellant Uttan Pal assaulted him with Tangi from the back side and in this manner Kalyan was assaulted and on seeing the incident in the light of the tube light fitted in the vicinity on the occasion of the marriage ceremony the informant and Kanan rushed to the spot and shouted for help and at that time other persons also came to the spot on hearing hue and cry and shouting and the assailants in the meantime fled away from the place and Kalyan fell down with bleeding injuries and the informant then clasped the body of the victim and in presence of all persons who had assembled there the victim uttered the names of the assailants two or three times and then became unconscious and was then removed to the D.S.P. Hospital where he was declared dead. It is alleged in the F.I.R. that the victim was murdered pursuant to a conspiracy made by the supporters of the political party, SUCI.
(3.) P.W.1 Swapan Goswami the informant and brother of the victim Kalyan Goswami deposes in support of the F.I.R. lodged by him. It may be noted here that the incident took place in the village Sharpi. Evidence of P.W.1 is that on the occasion of the marriage ceremony of the daughter of Srutidhar Mazumdar of the same village he and others including his elder brother Kalyan Goswami who were invitees went to the house of Srutidhar and after taking dinner he and his relative Kanan Banerjee came out of the house of Srutidhar following his brother Kalyan Goswami, and certain other invitees namely, Santi Mazumdar, Devidas Goswami, Asish Mukherjee, Gurudas Banerjee, Bhim Mondal also came out of the house of Srutidhar after attending the feast there just a little before his brother came out from there. He says that thereafter he saw Kanti Goswami, Sundar Chatterjee (App. No.1), Rambilash Pal (App. No.2), Utthan Pal (Appl. No.6), Dona Pal (App. No.4), Ram Kanai Pal, Shyamasis Banerjee (Khokan), Ram Prasad Pal, Kiriti Chatterjee, Genna Banerjee (Guruprosad Banerjee) and some other persons standing in front of the shop of Dilip Roy Chowdhury (P.W.6) being armed with Lathi, Bhojali, Tangi etc. and he could recognise them clearly in the light of the tube light of the marriage ceremony and also of the street light and that thereafter on arrival of his said elder brother there the accused Sundar Chatterjee (App. No.1) struck him with a Bhojali on his neck on his left side and the accused Ram Bilas Pal (App. No.2) struck him with Bhojali on the right side of his neck and his brother raised cry and instantaneously Pranab Chatterjee (App. No.3), Dona Pal (App. No.4), Rosa Pal (App. No.5) surrounded his elder brother and the accused Utthan (App. No.6) struck his brother with a Tangi from back side and his brother raised cry and he (Swapan) and Kanan also raised hue and cry shouting for help and on hearing such cry the persons who were going just ahead of his brother after attending the marriage feast and other persons also rushed to the place and on seeing them the accused person fled away. According to P.W.1 he caught his brother embracing and kept the head of his brother on his lap and at that state his brother told him that Sundar Chatterjee, Rambilas Pal, Uttan Pal, Pranab Chatterjee, Kanti Goswarni, Ramkanai Pal, Gonna Banerjee, Khokan (Alias Shyamashis Banerjee) and some others had caused him deadly injury and after repeating those words two to three times his brother fell unconscious. He says that his injured brother was removed to D.S.P. Hospital in the Mini Bus of the marriage party and the doctors declared him dead there. He gives the time of the occurrence as 10-15 p.m. He says that the accused persons conspired to cause death of his said brother and they belonged to SUCI party and he further says that police visited his said brother at 12-35 hrs. and he got the occurrence written by Asish Mukherjee (P.W.5) and handed over the same to the police. He was cross-examined on the point that while in the F.I.R. it is stated that Pranab, Dona and Rosa caught his brother, in his evidence he says that they had surrounded his brother. He of course says that they had surrounded him and not caught him. From his cross-examination it appears that P.W.1 Swapan Goswami along with Kanan was at a distance of about 20 ft. from his brother. He says that he resides in his paternal house in his village which is located to the South-East of the P.O. but he cannot say its distance from the P.O. by guess. He also says that the house of Anil Ghosh (P.W. 3) is situated by the side of the Primary School of their village and there is also one Anil Raichowdhury of Goyalapara which name has been noted in the F.I.R. The name of Anil Rai Chowdhury is mentioned in the written complaint as one of the persons who came ahead of the victim Kalyan Goswami from the house of Srutidhar Mazumdar. Anil Raichowdhury was however not examined in the case and Anil Ghosh (P.W.3) was examined. P.W.1 Swapan Goswami however, says in course of his cross-examination by way of a voluntary statement that it was wrongly recorded as Anil Raichowdhury in the written complaint in place of Anil Ghosh though he had stated 'Ghosh'. Cross-examination was made to elicit that P.W.1 Swapan Goswami and his brother deceased Kalyan Goswami were involved in other cases and they were also arrested. It was also taken from him in cross- examination that Kalyan was detained under MISA. He says that he is a supporter of CPI (M) party for the last five years. However, he cann't say why Kalyan was made a target of the conspiracy. His evidence is that he reached the hospital at about 11 P.M. He also says in his cross-examination that he narrated the entire incident when he met the Darogababu in the hospital and he narrated it verbally and at the time of such verbal narration Ashis was writing the written complaint as he asked Asish to write it down. He also says that one road leads to the east from the Tematha in front of the shop of Dilip and this road leads to Bouripara and Muchipara. It is suggested to him in his cross-examination that his brother was attacked by some unknown miscreants when he was returning home through Muchipara and Bouripara and that being attacked in Muchipara and Bouripara his said brother came running and fell down in front of the shop of Dilip which however he denies. He also denies the defence suggestion that his brother was killed in connection with litigations in which he was involved and that the killing of his brother was due to the culmination of his anti-social activities. He denies the defence suggestion that out of doubt, suspicion and malice against the accused persons he has falsely involved them in this case in order to destroy the SUCI party.;