MOTIA @ MOTILAL SHAW AND 2 ORS. Vs. STATE

JUDGEMENT

(1.) This, is a Reference dated 2.7.69 by Sri S.R. Roy, Additional Sessions Judge, 3rd Court, Alipore under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death passed by him on the three accused-appellants, Motia alias Motilal Shaw, Jagannath Prosad and Ram Prosad Shaw in Sessions Trial No. 1 of May 1969 of the 3rd Court of the Additional Sessions Judge, 24-Parganas at Alipore. The accused-appellants have also preferred an appeal against the order dated the 26th June, 1969 passed by the learned Additional Sessions Judge, convicting all of them under sections 302/34 I.P.C. (on three counts), 307/34 I.P.C. (on five counts) as well as under section 148 I.P.C. and sentencing them to death under section 302/34 I.P.C. but passing no separate sentences under the other charges; and further convicting the accused-appellant No. 1, Motia alias Motilal Shaw under section 27 of the Arms Act. 1959 but passing no separate sentence thereunder; while acquitting the accused-appellant No. 3, Ram Prosad Shaw under section 27 of the Arms Act and the two co-accused, Kartic Das and Gouranga Roy, of all the charges framed against them on a benefit of doubt.

(2.) The prosecution case inter alia is that on 22.11.67 at about 1-45 a.m. a jeep driven by Dinanath Singh and carrying; Sukdeo Singh, Harendranath Singh, Jit Singh, Dharamnath Singh, Gour Chandra Basu, Sudhir Kumar Ghosh and Surya Kumar Chatterjee alias Nanu was proceeding alter a night round, along Nalini Bose Road and nearing its junction with Nakari Mondal Road, Kanchrapara, P.S. Bijpur, 8 or 10 men, including the accused on trial, stood at the time at the junction of the said road. A bomb was hurled on the jeep which swerved as a result thereof and got stuck up in the drain by the side of the road on the west of Nakari Mondal Road. The assailants surrounded the jeep and shots were fired on the men seated therein from small-sized revolvers or pistols. The accused Motia alias Motilal Shaw and another person dragged down the driver Dinanath Singh from the jeep and thereafter Motia shot him and threw him into the drain. Finding Harendra Nath Singh in the jeep, Motia exclaimed that he had new got the prey and will take revenge for Jugal and then fired shots on Harendra from his pistol or revolver, dragged him out of the jeep shot him again and threw him over the body of Dinanath Singh into the same drain. Finding then Sukdeo Singh in the jeep, accused Motia exclaimed that Sukdeo was also there and fired shot at once from his pistol or revolver on the back of his head. In the mean time either Bibha or Deomoni went to the right side of the jeep and fired shot at Jit Singh and thereafter all the miscreants armed with pistols or revolvers went to the rear side of the jeep and indiscriminately and recklessly fired shots at the four other occupants viz., Dharamnath Singh, Sudhir Kumar Ghosh, Gour Chandra Basu and Nanu. The entire occurrence took place within 4 or 5 minutes and before anybody could come to the rescue, the miscreants made good their escape along Nalini Bose Road. S.I.P.K. Banerjee the O.C. of the Bijpur P.S., who was on patrol duty at the relevant time with his officers and force, was attracted by the explosion of bombs and the sound of gun shots and at once proceeded to that direction in the police van. P.W. 42 Harish Chandra Singh was then coming and was taken into the van, On arriving at the place of occurrence at about 1-50 a.m. in the night, the party found the jeep lying with its two front wheels inside the drain on the western side of Nakari Mondal Road near the crossing in question with head lights on. Inside the drain they saw the dead bodies, one over the other. The body lying underneath was identified by Harish Chandra Singh as that of the driver Dinanath Singh and the one lying above it was identified by him as the dead body of his elder brother Harendra Nath Singh. The third dead body was found lying on the front seat with the lower portion hanging out and it was identified by the same witness to be the dead body of Jit Singh. Dharamnath Singh had already left for his home and the police party found 4 of the injured persons viz., Sukdeo Singh, Gour Chandra Basu, Sudhir Kumar Ghosh and Surya Kumar Chatterjee alias Nanu and sent them to the Kanchrapara Railway Hospital for treatment. Before being sent to the hospital Sukdeo's statement was recorded by S.I.P.K. Banerjee (P.W. 52) and his L.T.I. was taken therein. The statement was sent to the P.S. with a direction to treat it as the F.I.R. and A.S.I. Gopinath Sen (P.W. 40) who was at the time in charge of the P.S., drew up the formal F.I.R. (Ext. 20) on the basis thereof. In course of the investigation that followed statements were recorded, T.I. parade was held and ultimately a charge-sheet was submitted against 8 accused persons under sections 302/34 and 307/34 I.P.C.

(3.) Two of the accused persons viz, Motia alias Motilal Shaw and Jagannath Prosad were found absconding and the three others viz., Ram Prosad Shaw, Gouranga Roy alias Subodh Chandra Roy and Kartick Das were produced and faced an enquiry under Chapter VIII of the Code of Criminal Procedure before Shri S.K. Chakraborty, Magistrate, 1st Class, Barrackpore under sections 302/34 307/34, 148 I.P.C. and section 27 of the Arms Act, 1959. Six witnesses were examined, of whom P.W. 6 is an eyewitness and the five others are police officers, who executed the proclamation and arrest order against the absconding accused persons. On a perusal of the evidence and statements the learned enquiring magistrate, by his order dated the 1st March, 1969, committed the three accused viz., Ram Prosad Shaw, Gouranga Roy and Kartick Das to the court of Sessions to stand their trial under sections 302/34 I.P.C. (on three counts); under section 307/34 I.P.C. (on five counts); under section 148 I.P.C.; and the accused Ram Prosad Shaw also under section 27 of the Arms Act, 1959. After the two absconding accused Motia alias Motilal Shaw and Jagannath Prosad were apprehended and produced before the court on 7.4.69, the learned enquiring magistrate perused the statements of the witnesses under section 161 Code Criminal Procedure and other records and by his order dated 19.4.69 committed all the accused to the court of sessions to stand their trial under sections 302/34 I.P.C., on three counts, 307/34 I.P.C. on five counts; 148 I.P.C.; and the accused Motia alias Motilal Shaw also under section 27 of the Arms Act, 1959. The learned Additional Sessions Judge, 3rd Court, 24-Parganas, thereafter held a joint trial of the five accused persons on charges referred to above. The defence case inter alia is that the accused are not guilty; that they had nothing to do with the occurrence; and that they have been implicated out of enmity and grudge. 53 witnesses were examined on behalf of the prosecution and several exhibits were proved on behalf of both the sides. As a result of the trial the learned Additional Sessions Judge by his order dated the 26th June, 1969, convicted and sentenced the three accused-appellants as stated above and acquitted the two co-accused Kartick Das and Gouranga Roy. A reference under section 374 of the Code of Criminal Procedure was also made to the High Court for confirming the sentence of death passed on the three accused. The said order of conviction and sentence has been impugned and forms the subject-matter of the present appeal.