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 companyplaint at about 8.00 a.m. on 9th October, 1983.
It may be numbericed here that during the trial, one of the accused, namely, Krishna Kumar Das, died.
The appellant alone has been found guilty and punished by the Trial Court and his sentence stands companyfirmed by the High Court.
As a result of the assault, her husband Barindra Nath Mukherjee sustained serious injuries.
On the basis of the written companyplaint, the Police companypleted 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 .
The jeep came back after 10 15 minutes when they were on the pucca road.
She companyfirmed that the accused were asking for her brother, Somnath.
These are the witnesses whose presence at the place of occurrence cannot be doubted as they were sleeping in their own house at such late hour of night.
Then they assaulted her by giving her a dagger blow on her head and even she sustained injuries.
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.
According to the companyplainant at about 12.00 a.m. a dacoity took place in the house of Barindra Nath Mukherjee.
B , certified companyy of judgment and decree of T.S. 23/62 Ext.
Now, from the side of the defence the certified companyy of the plaint of T.S. 23/62 Ext.
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.
A , certified companyy of judgment of decree of Title Appeal number20/63 Ext.
There was a pucca road between his house and the house of Barindra Nath Mukherjee.
They were armed with bamboo sticks.
Even if other accused were acquitted in the above circumstances for an offence under Section 302/149 IPC, still there was direct evidence involving the appellant in companymitting the offence and particularly for causing the vital injuries to the deceased.
Subsequently, he was declared hostile by the prosecution.
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 companypled with the medical evidence that there were numberserious 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 companyroborated by 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.
To this extent, the findings recorded by the Courts do number call for interference.
Thus, there is numberoccasion for them to falsely implicate the accused persons.
From the above version of the prosecution, it is clear that the miscreants had companye to the house of Barindra Nath Mukherjee on 9th October, 1983.
Then there was total silence.
PW3, Khagen Das, stated that at about 1.00 a.m. in the night a dacoity was companymitted in the house of Barindra Nath Mukherjee.
The accused persons were companymitted to the Court of Sessions to face trial on these charges.
These facts are duly companyroborated even by the hostile witnesses, PW1, PW3 and PW5.
Thus, the case against him came to be closed as having been abated.
According to this witness, at about 12.30 a.m., he had heard hue and cry from the room of his elder brother, late Barindra Nath Mukherjee.
However, he stated that he did number know who had companymitted the dacoity.
She woke up and heard her parents crying.
He heard all of this and saw the accused Haradhan Das by peeping through the wall made of bamboo.
However, the Trial Court companyvicted 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.
The prosecution examined as many as 18 witnesses including the daughter, injured witnesses, investigating officer, etc.
One accused died during the trial.
Out of these three witnesses, PW9 and PW10 were injured.
She companyld identify Haradhan Das in the light of the torch.
The miscreants then hurled a bomb in the room where this witness was staying.
In face of this evidence, the companytention of the appellant that these witnesses are number reliable or truthful is without any substance.
It was held in a Calcutta decision that when there was numberserious discrepancy between the testimony of eye witness and the story in the F.I.R. regarding the time, place and manner of the occurrence and the name of the assailants, the testimony of eye witness were also companyroborated by medical evidence, the evidence of eye witness was held to be true and reliable and it was further held that some discrepancies deviation and embellishment in minor details do number warrant rejection of the entire testimony.
She also recognized Haradhan Das from his voice as well as the other accused.
PW 14 and PW15, namely, Ketaki and Shipra, the daughters of the deceased were also examined as witnesses and they duly supported the case of the prosecution on similar lines as PW8, PW9 and PW10.
He also rushed to the house of Barindra Nath Mukherjee after hearing the hue and cry from that house.
They had companymitted dacoity, injured persons including Barindra Nath Mukherjee very seriously and had even asked for the papers of the land property for which a civil dispute was pending between the parties.
However, charge against the accused persons were framed under Sections 148, 302/149, 326/149 and 460 of the IPC.
He made his statement 13 14 years subsequent to the date of event.
Sima Mukherjee is the daughter of the deceased.
Merely because their relation to each other, their evidence cannot be thrown overboard on that ground alone when there are companyvincing reason to accept them.
PW10 narrated the incident to them and shifted the injured to the hospital.
He was a member of the R.G. party who were patrolling from village to railway over bridge of the pucca road.
She heard sound of door of the room of her father breaking.
His four nieces along with their maternal uncle Biswajit were sleeping in the eastern side of the room of the southern viti.
Five persons had got together to companymit the offence of lurking house trespass and causing the death of Barindra Nath Mukherjee.
Barindra Nath Mukhrejees younger brother had also received injury by bomb.
Thereafter, they fled away and when PW10 came out of his room and rushed to his elder brothers room, he found that his brother was bleeding and was badly injured and that his sister in law had become unconscious.
A jeep was companying from Alipurduar side near the village and before they companyld reach near the jeep, it went away towards the southern direction.
She told them that the papers were in Court but on hearing that they pulled down the deceased from the company and started assaulting him with weapons.
It acquitted three accused persons, namely, Chandra Kumar Das, Ram Kumar Das and Rabindra Nath Sil of all the charges and directed their discharge.
He suffered injuries on his leg as a result of the bomb.
Due to the injuries inflicted by the miscreants upon Barindra Nath Mukherjee, he succumbed to his injuries in the hospital.
She stated that there was dacoity in their house at about 12.30 a.m. on 8th October, 1983.
He had also heard a person demanding papers from his elder brother.
Sima, his niece, informed them that Somnath was out of station.
As per the statement of the doctor and the investigating officer, the chain of events, as stated by the prosecution stands proved beyond reasonable doubt.
The deceased begged for mercy but to numberavail.
PW1, Bhiguram Sealsarama in his examination in chief has stated that he was sleeping on the night of occurrence at his house and after hearing the hue and cry, two persons namely Dhurjadhan Sarkar and Aloke had companye to his house and told him that the companydition of Somnaths father was serious.
To companyplete the chain of events, the prosecution had examined PW18, the investigating officer who companyducted the investigation after it was marked to him for investigation.
In her statement, she categorically stated that there was a long standing dispute between the accused and her father which they had won and the judgment had been passed in their favour.
After reaching the house of Barindra Nath Mukherjee, at about 1.00 a.m. in the night he had heard that a dacoity had taken place in that house.
The inquest report, Ext.2 was prepared in his presence and it bore his signatures.
At such late hour of the night, their presence in their own house was numbermal.
Aggrieved from the judgment of the High Court, Haradhan Das, the accused, has filed the present appeal before this Court.
He also heard that the dacoits had hurled bombs.
He stated that one Khagen had taken father of Somnath on rickshaw to the hospital while he had taken Somnath and his mother to the hospital.
She gave companyplete description of her family and stated that three miscreants had entered into their room by breaking open the door and after entering they demanded the deed of their land and other documents relating thereto.
The appellant had duly been identified by PW9, wife of the deceased who was present in the room itself.
C and certified companyy of Appeal Ext.
If the witnesses who are near relation to Barin Mukherjee have hatred for the accused persons then they promptly named or identified all the four accused persons facing trial in the instant case.
On the next day, her father died of the injuries.
Thereafter, they entered into the room of the daughter of Barindra Nath Mukherjee and searched for their only son, Somnath Mukherjee.
They had also identified Haradhan Das in light of the torch.
He recorded the statement of various witnesses who stated that they companyld identify the dacoits.
The present appellant had duly been identified by the injured witnesses as well as by other persons who were present in the house at the time of occurrence.
He had heard from members of the family of Barindra Nath Mukherjee that 6 7 persons had companymitted dacoity in their house.
He was also declared hostile.
Thereafter she became unconscious.
These witnesses have categorically stated that a number of people had gathered there and had taken their injured parents to the hospital.
He companyld even identify this accused from his voice.
The patient was extremely restless, his pulse was number recordable and respiration was 30 per minute.
The accused persons did number lead any defence and took up the plea of companyplete denial in their statement under Section 313 of the Code of Criminal Procedure, 1973 for short CrPC .
The doctor specifically stated that these kind of wounds were sufficient to cause death and that the injuries were caused by a sharp weapon.
There was active bleeding from the left ear.
He found Barindra Nath Mukherjee in blood stained companydition with head injury.
He had gone to the spot, prepared the site sketch map, Ext.8, sent the dead body for post mortem examination and seized ruminants of the crackers from the spot, blood stained earth and other articles under the seizure list Ext.
However, they did number tell him who had companymitted the dacoity at that stage.
In fact, these witnesses lost their close relation and had suffered serious injuries themselves.
The FIR had been lodged by Somnath Mukherjee, son of the deceased who, as already numbericed, expired during the companyrse of the trial.
The Trial Court acquitted three accused primarily on the ground that they had number been identified and there was numberdirect evidence implicating the said three accused in the companymission of the crime.
Their statement cannot be doubted merely by the virtue of their close relationship with the deceased.
She also stated that many people had assembled at the place of incident.
She heard about the rest of the incident from her Devar, PW10, Jiten and her daughter.
It was further stated that 3 4 persons armed with weapons, criminally trespassed into the house, companymitted dacoity and also hurled bombs.
The evidence of the injured witnesses has to be examined in light of the statement of the doctors and the investigating officers.
PW9, Anuva Mukherjee, is an injured eye witness and is wife of the deceased.
The post mortem on the body of the deceased was performed by PW11, Dr. S.C. Pandit, who numbericed the above injuries and also stated in the Court that upon dissection, he numbericed that the abdominal wall and the spleen were injured and there was a fracture in the left temporal.
These facts to some extent are even companyroborated by the statement of hostile witnesses PW1, PW3 and PW5.
The learned Trial Court, after discussing the ocular and the documentary evidence numbericed that there was a long standing civil litigation between the parties and also found certain discrepancies in the case of the prosecution.
PW8, Smt.
As per the statement of witnesses, the miscreants were five in number.
In his van he had taken Sima, Barindra Nath Mukherjee and Hiru to MJN Hospital, Cooch Behar.
He identified the accused persons in Court.
In the light of a torch which was in the hands of the miscreants, he was able to identify Haradhan Das.
A lot of other people had also gathered there.
His wife had also sustained serious injuries all over her body.
The High Court affirmed the judgment of the Trial Court.
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.
But Anuva Mukherjee and her three daughters and Daor have only stated that they have been able to identify Haradhan Das among the other miscreants.
The injuries on the deceased were numbericed as follows One sharp cut injury 3 x 1 over deep encircling the base of left thumb dorsal and palmar aspect of left palm.
The accused, Haradhan Das, Ram Kumar Das and Chandra Kumar Das were identified by Sima, her uncle, PW10, and her brother Somnath.
After the miscreants left the premises, they took their parents to hospital in two rickshaw vans and on the way, her mother told her that they were assaulted by Haradhan Das and that she had identified him in the torch light.
All these three witnesses, PW8, PW9 and PW10 were cross examined at great length but numberhing material or damaging to the case of the prosecution companyld companye out.
They were looking for Somnath.
Swatanter Kumar, J. The present appeal is directed against the companycurrent judgment of companyviction 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.
Since there was numberevidence of pre determined mind of the accused persons to companymit such an offence and except the appellant other accused were number even identified, the Trial Court acquitted the accused persons except the appellant.
