JUDGMENT :-

Swatanter Kumar, J.

1. The present appeal is directed against the concurrent judgment of conviction dated 29th June, 2001 and order of sentence dated 30th June, 2001 passed by the learned Additional Sessions Judge, Cooch Behar affirmed by judgment of the High Court dated 20th May, 2005.

2. The investigative machinery of the police was put into motion by one Shri Somnath Mukherjee son of Shri Barindra Nath Mukherjee, the deceased, by lodging a written complaint at about 8.00 a.m. on 9th October, 1983. According to the complainant at about 12.00 a.m. a dacoity took place in the house of Barindra Nath Mukherjee. It was further stated that 3-4 persons armed with weapons, criminally trespassed into the house, committed dacoity and also hurled bombs. First, they entered into the room of Barindra Nath Mukherjee and his wife Anuva Mukherjee, PW9, assaulted them and demanded the documents relating to their land-property. Thereafter, they entered into the room of the daughter of Barindra Nath Mukherjee and searched for their only son, Somnath Mukherjee. The miscreants then attacked the room of the brother of Barindra Nath Mukherjee, Jiten Mukherjee, PW10 and even threw a bomb causing injury to the said Jiten. Barindra Nath Mukherjee, his wife, Anuva and brother Jiten were taken to the hospital the next morning. Due to the injuries inflicted by the miscreants upon Barindra Nath Mukherjee, he succumbed to his injuries in the hospital.

3. On the basis of the written complaint, the Police completed its investigation and submitted a charge sheet against five accused persons, namely, Chandra Kumar Das, Ram Kumar Das Rabindra Nath Sil, Haradhan Das and Krishna Kumar Das under Sections 458, 459, 326, 302 and 120B of the Indian Penal Code, 1860 (for short ‘IPC’). However, charge against the accused persons were framed under Sections 148, 302/149, 326/149 and 460 of the IPC. The accused persons were committed to the Court of Sessions to face trial on these charges.

4. It may be noticed here that during the trial, one of the accused, namely, Krishna Kumar Das, died. Thus, the case against him came to be closed as having been abated. The prosecution examined as many as 18 witnesses including the daughter, injured witnesses, investigating officer, etc. The accused persons did not lead any defence and took up the plea of complete denial in their statement under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’). The learned Trial Court, after discussing the ocular and the documentary evidence noticed that there was a long standing civil litigation between the parties and also found certain discrepancies in the case of the prosecution. It acquitted three accused persons, namely, Chandra Kumar Das, Ram Kumar Das and Rabindra Nath Sil of all the charges and directed their discharge. However, the Trial Court convicted the accused Haradhan Das for an offence punishable under Section 302/149 IPC and sentenced him to life imprisonment and to pay a fine of Rs.10,000/- and in default to suffer imprisonment for one year under the said provision.

5. At this stage, I may usefully refer to the discussion of the Court as under :

“I think on the facts and evidence of the witnesses as discussed above coupled with the medical evidence that there were no serious discrepancies between the testimonies of P.Ws.8 to 10, 14 and 15 and the story of the F.I.R. regarding the time, place and manner of occurrence and the name of the assailants as disclosed by P.Ws.8 to 10, 14 and 15 and duly corroborated by P.Ws.2 and 4, the evidence as it was held in a reported decision that the evidence of an eye witness were held to be true and reliable and it was further held that some discrepancies, deviating and embellishment a minor. This part of argument of learned lawyer for the defence since rather hallow to me as because there are many occasions where Haradhan and the accused persons have chances to meet the family members of Barin Muherjee. Now, fr