ANANDA MONDAL AND OTHERS Vs. STATE

JUDGEMENT

(1.) The above noted Criminal Appeals and death reference are being dealt with and disposed of by this judgement as they all arise out of the same judgement passed by the Addl. Sessions Judge, 3rd Court, Nadia in sessions trial No. 1/June, 1994. Fourteen accused persons who are the present appellants were tried by the trial court on charge under section 148, 302/34 I. P. C. The trial court convicted the appellants Ananda Mondal, Sapnyasi Mondal, Ramkrishna Mondal and Nemai Mondal under section 302/34 I. P. C. and sentenced them to death and also to a fine of Rs. 5,000/- each i. d. to R. I. for one year for their conviction under section 302/34 I. P. C. and they were also convicted and sentenced to S. I. for 3 years with a fine of Rs. 2,000/- W. to i. d. for one year under section 148 I. P. C. The other appellants were also all convicted and sentenced to s. i. for three years and a fine of Rs. 2,000/- each W. to S. I. for one year under section 148 I. P. C. The death reference relates to death sentence imposed on the 4 appellants by the trial court for their conviction under section 302/34 I. P. C. Being aggrie. ed by the judgement and orders of conviction and sentence the above noted appeals have been preferred by the appellants-convicts.

(2.) This is a double murder case in. which the victims are full brothers. Ext. 1 is the FIR of the case. The FIR was written by P. W. 13 Ganesh Chandra Biswas who is also a brother of the victims and it was signed by PW. 1 Dolgobinda Biswas who was however declared hostile by the prosecution at the time of trial. In the FIR it is stated that at about 7-30 a. m. on 22.01.89 the informant Dolgobinda came out from his house and at about 8-00 a. m. he went to the tea stall of Asit Biswas near new bus stand and halted in front of the tea stall for taking tea and at about 8-10 a. m. Muktesh Ch. Biswas and his elder brother Naresh Biswas were taking tea sitting on the Mucha in front of that tea stall and suddenly Ananda Mondal (Appellant No. 1) fired at Muktesh and Naresh from the tea stall of Gouranga Pramanik and immediately Muktesh and Naresh tried to flee away while shouting and within a few minutes from the adjacent area of Abhoynagar, Girin Mondal, Faru @ Sannyasi Mondal, Madhusudan Mondal, Nemai Mondal, Bikash Mondal, Sukumar Mondal, Adhir Mondal, Mathamota Anu Mondal @ Ananda, Ramkrishna Mondal, Dhiren Mondal, Haren Mondal, Gouranga Pramanik, Babu Kabiraj and others, all of Abhoynagar P. S. Tehatta, assembled there being armed with fire arms, Ramdao, Hasua, Tangi etc. and surrounded Muktesh and Naresh and fired at them and assaulted them with da, hasua as a result of which Muktesh and Naresh expired at the place of occurrence. It may be noted here that the persons named above as the assailants are appellants before us. Certain persons have also been named in the FIR as witnesses to the occurrence, such as P. W. 4 Asit Biswas, the owner of the tea stall, P. W. 3 Bhajahari Pramanik, P. W. 9 Gopal Mondal, P. W. 2 Santosh Biswas. It is stated in the FIR that after murdering Naresh and Muktesh the miscreants fired from their firearms and also exploded bombs creating terror and fled away and the people present there did not dare to chase the miscreants. Thus according to the FIR the occurrence took place at about 8-10 a. m. and the FIR was lodged at the Tehatta P. S. at 8-45 a. m. The distance between the P. O. and the P. S. is noted as 20 km. We will find from the evidence on record that the persons who went to the P. S. immediately after the occurrence for lodging the FIR went on a two-wheeler. The FIR was recorded under sections 147/148/149/302 I. P. C. and sections 25/27 Arms Act and section 9(B) of the Explosive Substance Act.

(3.) Now let us look to the evidence on record. P. W. I Dolgobinda who lodged the FIR under his signature was however declared hostile by the prosecution. He is a resident of Abhoynagar. The victims Muktesh and Naresh were also the residents of Abhoynagar and the appellants are also residents of that place. Although in the FIR P. W. I Dolgobinda claimed to be an eye-witness to the occurrence, in his evidence in court he however says that he had not seen the killing of Muktesh and Naresh. He however says that on 8th Magh about 5 years ago at about 8-00 a. m. they were killed and he heard about the time of their killing. He however acknowledges his signature on the FIR and also says that an application had been submitted at the P. S. to which his signature appears. He however denies that he made the statements recorded in the FIR. He says that the accused Ananda, Ramkrishna and Nemai are brothers and his Bhaira-bhai (wife's sister's husband) Samar Mondal is also their brother. In his cross-examination on behalf of the defence he says that he signed on the FIR at his village Abhoynagar at about 3-30 p. m. as per direction of Ganesh Biswas. Mainly based on this statement it has been contended on behalf of the appellants that as a matter of fact the FIR was not at all lodged in the morning and it is an ante-timed and manufactured document and it cannot be relied upon at all. On the other hand it is submitted on behalf of the State that this hostile witness is making false statement in his evidence for the purpose of protecting the accused persons some of whom are his relations. P. W. 2 Santosh Kr. Biswas is a resident of Abhoynagar and he says that at the material time he had a fish Arat near the place where the victims Muktesh and Naresh were murdered. According to his evidence Muktesh was sitting on a Macha in front of the tea stall of Asit Biswas and he himself was sitting in his first Arat alone and P. W. 3 Bhajahari Pramanik was sitting by the side of Muktesh and P. W. 9 Gopal and P. W. Dolgobinda were standing by the side of Muktesh and at that time he heard a sound of firing and noticed that the accused Ananda Mondal was fleeing away after firing at Muktesh and Muktesh raised alarm 'Babago Mere Fello' and fell down on the ground after taking 2 or 3 steps and at that time the accused Faro @ Sannyasi fired aiming at Muktesh. His further evidence is that at that at that time Naresh tried to flee away crossing Muktesh and when Naresh reached near the middle of the metal road Prankrishna fired aiming at him and Naresh fell down. He says that Naresh Biswas tried to rise after raising alarm 'Babago Mere Fello' and at that time the accused Nemai Mondal gave several fatal blows by a Ramdao to Naresh and the accused Ramkrishna came there and began to assault Naresh with Ramdeo. He says that when the assailants were returning after assault, he (P. W. 2) fled away out of fear. He further says that at about 1-00 p. m. police appeared at the spot. His evidence in cross-examination shows that the bus stand market used to function from 6-00 a. m. and gradually large number of customers used to gather and at 6-00 a. m. 200/300 persons including customers used to assemble there. He further says that the metal road running through the market was a busy thoroughfare and from 5-00 a. m. buses used to ply there along that road. According to his evidence buses of different routes used to ply along that metal road at an interval of 40 minutes and not 15 minutes. He says that near the market the metal road was about 10 ft. wide and generally the route buses do not cover the entire metal road while plying. He says that the place of assault on Muktesh was at a distance of about 10 cubits from the place where he had been and the place of assault on Naresh was at a distance of about 15/16 cubits from his fish Arat. He says that he had witnessed the occurrence of assault for about 1-1/2 minute and just after seeing the assault on Muktesh and Naresh he left his fish Arat and fled away. It has been taken from him in his cross-examination that at that time there was firing and blasting of bombs at random and while he was sitting inside his fish Arat he heard sound of firing and bomb blasting and he did not become frightened on hearing the sounds of bomb blasting and firing at that time. It may be noted here that P. W. 2 Santosh is a FIR named witness.