JUDGMENT

P. Sathasivam, CJI.

1. This appeal has been filed against the final judgment and order dated 11.04.2008 passed by the High Court of Calcutta in C.R.A. No. 155 of 2004 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein.

2. Brief facts:

(a) On 14.01.2002, Avik Mondal (PW-1) - the de facto complainant and the cousin brothers of Sadananda Mondal (the appellant herein), namely, Newton Mondal, Manoj Mondal, Brojen Mondal and others were holding picnic. At about 4 p.m., the complainant party had altercation with Newton Mondal, Lalmohan Mondal, Brojen Mondal and Dilip Tarafdar. At the relevant time, on the intervention of Madhu Ghosh, Mrinmoy Chakraborty, Kartick Ghosh and Asish Sarkar, the dispute was settled and thereafter all of them left the place for their houses. When Bharat Mondal, elder brother of the de facto complainant, reached near the house of Narugopal Mondal, the son of Narugopal, namely, Sadananda Mondal (the appellant herein), fired at him from his house which hit on his chest near the lungs and he fell down. PW-1 lifted Bharat Mondal with the help of some villagers and took him in a Jeep to Berhampore Hospital for treatment.

(b) Thereafter, at 9.00 p.m., Avik Mondal (PW-1) went to the Tehatta Police Station and lodged a complaint. On the basis of the said complaint, a First Information Report (FIR) being No. 10 of 2002 was lodged under Section 326 of the Indian Penal Code, 1860 (in short 'IPC'). On the following day, i.e., 15.01.2002, Bharat Mondal succumbed to his injuries.

(c) On the basis of the said report, Sadananda Mondal-the appellant herein (A-1) along with 13 others viz., Prasanta Mondal (A-2), Sushanta Mondal (A-3), Sanatan Mondal (A-4), Nisith Mondal (A-5), Sukhen Mondal (A-6), Biswanath Mondal (A-7), Manoj Mondal (A-8), Mahitosh Mondal (A-9), Brojen Mondal (A-10), Dilip Tarafdar (A-11), Newton Mondal (A-12), Lalmohan Mondal (A-13) and Dasarath Tarafdar (A-14) was taken into custody. After investigation, a chargesheet was filed against the accused persons under Section 302 read with Section 34, Section 120-B of IPC and the case was committed to the Court of Additional Sessions Judge, Fast Track Court 1, Krishnanagar, Nadia and was numbered as Sessions Case No. 2(10) of 2003.

(d) Vide orders dated 17/19.02.2004, the Additional Sessions Judge, Fast Track Court-I, Krishnanagar, in Sessions Trial No. 111 of December, 2003 arising out of Sessions Case No. 2(10) of 2003 convicted 8 accused persons viz., Sadananda Mondal (A-1), Sukhen Mondal (A-6), Biswanath Mondal (A-7), Manoj Mondal (A-8), Mahitosh Mondal (A-9), Brojen Mondal (A-10), Dilip Tarafdar (A-11) and Newton Mondal (A-12) under Sections 302 read with 34 IPC and sentenced to undergo imprisonment for life along with a fine of Rs. 5,000/- each, in default, to further undergo rigorous imprisonment for one year. However, rest of the six accused persons, viz., Prasanta Mondal (A-2), Sushanta Mondal (A-3), Sanatan Mondal (A-4), Nisith Mondal (A-5), Lalmohan Mondal (A-13) and Dasarath Tarafdar (A-14) were acquitted of all the charges.

(e) Being aggrieved of the above order, A-1 (the appellant herein), preferred an appeal being C.R.A. No. 155 of 2004 and rest of the 7 accused persons filed an appeal being C.R.A. No. 166 of 2004 before the High Court. The High Court, by order dated 11.04.2008 allowed C.R.A. No. 166 of 2004 and set aside the judgment and order dated 17/19.02.2004 passed by the Additional Sessions Judge against the appellants therein and dismissed C.R.A. No. 155 of 2004 preferred by the appellant herein.

(f) Aggrieved by the said order, the appellant has preferred this appeal by way of special leave before this Court.

3. Heard Mr. Pradip Ghosh, learned senior counsel for the appellant and Mr. Chanchal Kr. Ganguli, learned counsel for the respondent-State.

Contentions:

4. Mr. Pradip Ghosh, learned senior counsel for the appellant, after taking us through the entire materials, namely, oral and documentary ev