KAZEM SK Vs. STATE OF W B

JUDGEMENT

(1.) THESE three appeals are directed against a judgment dated 18th April 2002 passed by the learned sessions Judge, Suri, birbhum, in sessions Trial No. 3/may 1992 arising out of Sessions Case No. 47 of 1984 convicting the appellants under sections 148, 302, 436, 326 read with section 149 of the Indian Penal Code and an order passed on the same day by which the accused Buddik Sheikh, Sadek Sheikh, Ruli Sheikh and kabir Sheikh were convicted and sentenced to suffer further imprisonment for a year and the rest of the appellants were convicted and sentenced to suffer imprisonment for life as also to pay a fine of Rs. 5000/- in default to suffer imprisonment for one year for the offence punishable under section 302 read with section 149 of the IPC. The accused Maddin Seikh was convicted and sentenced to suffer 10 years imprisonment as also to pay a fine of Rs. 1000/-, in default to suffer further imprisonment for three months for the offences punishable under section 436 simpliciter. The rest of the appellants were however convicted and sentenced to suffer identical punishment for the offence punishable under section 436 read with section 149 IPC. The accused sadek Seikh alias Sadek All was convicted and sentenced to suffer three years rigorous imprisonment as also to pay a fine of Rs. 3000/-, in default to suffer imprisonment for further six months for the offence punishable under section 326 simpliciter. Rest of the appellants were handed down similar punishment under section 326 read with section 149 of the IPC. All the substantive sentences were directed to run concurrently.

(2.) BRIEFLY slated the facts of the case are as follows: in the night of 15th/16th May 1982 at 02. 00 hrs. , thirty (30) named accused persons along with others are alleged to have raided the house of sezidur Rahaman. Samsul, son of Sezidur Rahaman who was sleeping in the courtyard was mercilessly murdered. The inmates of the house helplessly were watching the incident. They were chased whereupon they entered into the room and bolted from inside. Bombs were then exploded. House of the de facto complainant was partly thatched by corrugated tin and party by straw. The house was put on fire. Akramul, another son of the de facto complainant Sezidur Rahaman was sleeping with his wife in one of the rooms. In order to save his life he came out of his room along with his wife. Both of them were severely assaulted. The other inmates of the house also came out of the burning house. Latifa, the wife of the defacto complainant Sezidur, intervened and tried to save her son Akramul whereupon she was also assaulted. Akramul was taken away from the house of the de facto complainant and his dead body was found near a pond in the morning. The wife of the defacto complainant received grievous injury. So did the wife of the victim Akramul. It is not in dispute that Nadira, wife of the victim Akramul, is a sister of the accused Kazem. She had fallen in love with Ashadul. They were married. The accused Kazem was against this marriage. The mamage sparked dispute between the families. Ashadul committed suicide more or less within two months after the marriage. The de facto complainant had to leave the village. He remained outside of the village for more than ten months. He returned to the village about twenty days before the date of the incident. About ten days prior to the date of incident he solemnised the marriage of the said Nadira with his son Akramul against the wishes of Kazem. After the fateful incident on 15th/ 16th May 1982 Nadira has patched up with her brother Kazem and has been married somewhere else. The defacto complainant and the rest of his family has moved out from the village.

(3.) CHARGE sheet was filed by the police against the thirty accused persons. Charge was framed against 29 of them. The trial remained pending for 20 years. For the first time charges were framed on 3rd September 1984. For the second time charges were framed on 16th January 1991. It appears from the Lower Court records that on 13th July 1992 on behalf of the accused rahul a letter of a learned Advocate was produced signifying that the hearing of the case had been stayed by the High Court. No copy of the order granting stay was however produced. On 1st August 2000 it was submitted on behalf of the accused that nothing was pending in the High Court. The trial was thus stalled for 8 years for no reason whatsoever. Prayers were even thereafter made on behalf of the defence to adjourn the hearing of the case on various grounds which were granted by the learned Trial Court from time to time but this time the learned Trial Judge insisted upon production of the copy of the order, staying hearing of the case, which the accused persons failed to produce and ultimately the Trial was concluded on 15th March 2002. The delay of 20 years naturally took its toll. 9 of the accused persons died in the meantime. P. W. 6, wife of the defacto complainant became senile. The learned trial Judge who is now one of us while taking her evidence recorded the following observation under section 290 of the Code of Criminal Procedure:-"the witness started weeping and it was found that she is not in a position to remember everything. "