HAMID MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal has been directed on filing petition of appeal by three appellants challenging the judgment and order of conviction and sentence of the appellants of the charge under Section 307/34, Indian Penal Code (in short I.P.C.) passed by the Learned Additional Sessions Judge, 1st Court, Nadia at Krishnagar in Sessions Trial No. V (May 2007) in connection with Sessions Case No 2(10) of 2006.

(2.) In the said judgment dated 29.4.2014 order of conviction of three appellants and order of acquittal of an another accused Sariat Mollah @ Mao has been passed and by an order dated 30.4.2014 of that judgment, three appellants have been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.50,000/- in default to suffer simple imprisonment for further one year of the offence punishable under Section 307/34, Indian Penal Code.

(3.) Chequered history of the case in short is that on 10.5.2005 informant Sentu kabiraj (PW 13) lodged a written complaint at Hogalberia P.S. in the District of Nadia against unknown accused persons alleging that his elder brother Bipad Kabiraj (PW 11) had gone to his agricultural land across the fence of Indo-Bangladesh Border Area after submitting his Voter Identity Card before the B.S.F. camp on 8.5.2005. But he did not return home till evening of 8.5.2005. Said matter was reported by the informant at B.S.F. camp. In that evening and then at about 9 p.m. the informant (PW 13) alongwith some members of R.G. party and B.S.F. personnels went to the other side of the aforesaid fence in search of his elder brother and they found Bipad Kabiraj was lying with severe bleeding injuries on his persons. He was taken to Karimpur hospital first with the help of B.S.F. and therefrom he was shifted to Shaktinagar hospital when he was struggling for life. Delay in lodging the complaint has been explained as due to engagement in treatment of Bipad Kabiraj. Said complaint was treated as FIR at P.S. and subsequently, it was forwarded to Court where it was received on 12.5.2005. After a few days, on 2.6.2005 the investigating Police Officer, Sub-inspector Santilal Nandi (PW 17) submitted report in Final Form (in short F.R.T) alleging inter alia that he could not apprehend the gang of criminals as they are smugglers of Bangladesh. Said F.R.T. was not accepted by the learned Magistrate and order was passed for service of notice upon the informant. Said notice was not served case docket (C.D.) and was not produced by I.O. on 27.4.2006 Police Officer of Hogalberia P.S. namely Md. Maskar (PW 16) submitted a prayer before learned Magistrate for permission to reopen the investigation of the case with an another prayer for taking the appellants who were arrested in connection with another case of that P.S. under Section 14, Foreigners Act in custody on production of those persons. Considering the prayer of the said Police Officer as subsequent I.O. of the case F.R.T. was not accepted and permission to reopen the investigation was granted and the appellants of this appeal as accused persons were taken into custody in connection with the case by the learned Magistrate. After completion of investigation PW 16 submitted charge sheet against seven accused persons including the three appellants of this appeal showing four absconder accused namely Mao @ Sariat Mollah, Akati Mondal, Lazibar Mondal and Mohidul Mondal @ Mohid all of village Jamalpur P.S. Doulatpur, District Kustia, Bangladesh under Sections 326/307/34, Indian Penal Code. Cognizance was taken by the Learned Additional Chief Judicial Magistrate Tehatta District Nadia on 8.6.2006. Thereafter, process was issued for apprehending the absconder accused persons but they could not be arrested. The case against them was filed for the present as per order dated 1.9.2006 by learned Additional Chief Judicial Magistrate Tehatta. The case was committed under Section 209, Cr. P.C. to the Court of Sessions, Nadia. Learned Sessions Judge, Nadia transferred the case after registering its Sessions Case No. 2(10) of 2006 to the 1st Court of learned Additional Sessions Judge, Krishnagar, Nadia. In that Court charge under Section 307/34, Indian Penal Code was framed against these three appellants on 25/5/2007 and trial of the case started. In course of trial, another accused Sariat Mollah @ Mao could be apprehended and produced before the learned Additional Sessions Judge. Charge under Section 307/34, Indian Penal Code was framed against him also in separate sheet on 26.6.2008. Opportunity was given to said accused Sariat Mollah @ Mao to cross-examine the witnesses who were already examined. Then the trial of four accused persons including the three appellants of this appeal continued and ended on passing the impugned judgment.