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IN THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK, FIRST COURT, DIAMOND HARBOUR, SOUTH 24 PARGANAS.
Present: Shri Harjinder Singh, Additional District and Sessions Judge.
Dated, Diamond Harbour the 29th day of July, 2005.
S.T. No. 9(3)03 S.C. No.14(12)02/GR No.86/2000 u/Sec.304/34 I.P.C.
State v. 1) Dhurjan Saha @ Manas Saha
2) Satrya Ranjan Mondal,
3) Nirmal Saha,
4) Kochi Haldar.
5) Ramen Haldar.
6) Laltu Saha.
7) Pravash Naskar and
8) Prakash Naskar.
J U D G E M E N T
The accused No,1 Dhurjati Saha @ Manas Saha on 16-01-2000 at about 16.45 hours as a Complainant lodged an FIR againsst unknown accused persons with the Usthi P.S. in respect of an incident of the same date that took place at aviyt 14.00 hours at Yearpur, G.P. Yearpur under P.S. Usthi, District: South 24 Parganas to the effect that on the day of 16th of January, 2000 at about 2.00 P.M. the complainant heard a hue and cry of several people coming from the northern side of his house. He also heard that local public caught hold of three of the local dacoits after surrounding them. Simultaneously, the public caught hold of Shri Swapan Haldar s/o late Ajit Haldar and one other person Gopal Naskar s/o late Rati Kanta Naskar of village Yearpur and subjected them to merciless beating and as a result two of them subjected to a merciless beating while the third dacoit managed to flee away and as a result of the aforesaid merciless beating, the two dacoits named above after sometime succumbed to their injuries. Therefore, the complainant prayed for necessary action against the accused persons. On the basis of the aforesaid complaint, the police started Usthi P.S. case No.12 dated 16-01-2000 against unknown culprits under Secs.304/34 IPC. After investigation, the police submitted a Charge Sheet No.66 dated 24.05.2000 under Secs.304/34 IPC against the aforesaid eight accused persons including the complainant of this case making him accused No.1 in the C.S. The I.O. Strangely enough did not give the narration of the prosecution case as was uncovered after completion of the investigation. After transfer of this case to this Court for trial, my predecessor in office Shri Inderjit Chatterjee on 11-04-2003, framed a charge under Sec.304 Part I read with Section 34 of the IPC against the eight accused persons, who pleaded not guilty to the charges against them and claimed to be tried. The accused persons pleaded that they are innocent and have been falsely implicated in this case on account of previous grudge and political rivalry. They did not file any written statement as envisaged under Sec.233(2) of the Cr.P.C. However, the accused No.1 Manas Saha @ Dhrubjoti after filing a permission petition under Sec. 315 of the Cr.P.C. got himself examined as DW1 on 13-06-2005. The accused persons also examined one more witness in support of their defence case. The evidence of these witnesses shall be discussed later on.
POINTS FOR DETERMINATION
Did the accused persons in prosecution of their common intention to intentionally cause the death of the two victims, cause their deaths on the date, time and place as alleged?
Are the accused persons guilty of having committed an offence under Secs.304 Part I read with Sec.34 of the IPC or entitled to the benefit of doubt if any?
DECISION WITH REASONS.
Points Nos. 1 and 2:- Both the points are taken up together for the sake of convenience, continuity and brevity in discussions. The prosecution in this case examined 13 witnesses and proved several documents marked Exhibits 1 to 10 as per list in support of their case. But since the accused persons, particularly accused No.1 Dhrubajoti Saha @ Manas Saha adduced evidence in support of their defence case , I would like to take up the defence case first, as because, in case the same is found believable, a great deal of discussions regarding criminal liability of one of the main accused can be avoided. The aforesaid accused, it appears has taken an ALIBI that since during the time the offence was committed, he was at the P.S. and as such, he can not be held liable for the offence. He, in his evidence as DW1 deposed, “ I am an accused in this case. I have filed a petition to get myself examined u/s.315 Cr.P.C. today. I have also signed the said petition.
The incident took place on 16.01.2000. On 16.01.2000 at 2.00 to 2.30 PM I heard a hue and cry coming from the northern side of my house. I also heard the sound of explosion of a bomb. The sound of explosion of the bomb came from the northern side of my house. I then after a walk of 5 minutes went towards the PO where I saw about 2000 to 3000 people in the field who were raising a hue and cry and saying, “Dakat Dhorechi, dakat dhorechi:. I saw people to assault somebody with lathis and one of the persons told me that the mob was assaulting two dacoits. Then, I went to the house of Matiar Sk who was having a motor cycle and requested him to go along with me to the police station. At the P.S. I found the duty officer present and at that (time) the OC probably had gone to his (house) to take his food. Then, I lodged a diary at the P.S. Subsequently, I lodged a written complaint at about 4.00 to 4.30 PM at the PS. The written complaint was written by Dipak Kr. Palla as (per) my statement. I am a literate person, but since I was in tension, I requested him to write the complaint. The police accepted my complaint. This is the said written complaint filed by me at the PS and signed by me (identifies Ext.2(1)). After the FIR I was not examined by the police. The PO is known as Yearpur Utta Math. On the four sides of the said field there are several houses. After submission of the FIR the OC told me that the I.O. shall follow me in a jeep. When I came to the PO along with the I.O. I found two dead bodies lying in the field. The I.O. then............” In his cross-examination this witness deposed, “ I reached the PS at about 2.30 to 2.35 PM that day. After lodging the G.D. I kept sitting at the PS for about half an hour. I reached the PO at about 4.00 PM along with the I.O.”
Thus we find that this accused did not deny lodging of the FIR (Ext.2(1)) and the GDE (Ext.6) The G.D.E. No.582 dated 16-01-2000 was lodged at 14.15 hours and reads as follows:-
“One Manash Saha s/o Sri Bijoy Krisna Saha called at P.S. and report that today (16.01.2000) at noon, the riotous mob of Yearpore and other adjacent villages gheraowed some miscrfeants of Earpore and are assaulting them. The informant along with others tried to save the miscreants from public beating but failed. Subsequently, S.I. S. Mondal alongwith Forces rush to the spot to look after the matter. Noted for reference.”
Even in his 313 Cr.P.C. examination, this accused in reply to the questions Nos.5 and 36 admitted lodging of the FIR and GDE by him. Therefore, now it is for this Court to find out if the accused indeed had gone to the PS to take Police protection for the hapless victims who were being assaulted as per him by a mob, or went there merely to create an alibi for himself to cover up his misdeeds. We are all aware of the axion that men may life, but documents can not.
If we compare certain facts as recorded in the FIR (Ext.2(1)) and the GDE (Ext.6), it soon becomes crystal clear that the accused vainly tried to be fool this Court by his unsustainable false plea of alibi. These contradictions can be enumerated one by one as follows:-
As per his evidence, the accused went to the PS, lodged the Diary, kept waiting for the arrival of the OC, lodged an FIR and only thereafter he along with the I.O. came to the P.O. when he found the dead bodies of the two dacoits lying in the field. But his aforesaid lies gets nailed down by the documents of his own creation as as per the FIR we find that the accused not only knew that the two dacoits were dead, but he also knew who they were and he even named them as one Swapan Haldar and the other one as Gopal Naskar who were beaten to death by the Mob. In case he came to learn about the death of the two dacoits only when he came to the P.O. along with the I.O., then how come that the names and exact number of the so called dacoits killed by the mob find their place in the FIR (Ext.2(1)? He did not claim that he received any telephonic message while sitting in the PS or had any extra sensory perception to acquire such information at the PS.
As per his evidence after lodging of the FIR at about 16.45 hours, he along with the I.O. proceeded to the P.O. This is falsified by his own document Ext.6 according to which the S.I. Shri S. Mondal had already left along with the Force for the P.O. at about 14-45 hours when the G.D.E. was lodged by the Complainant-cum-accused No.1. Did this accused, after committing the crime went to the P.S. and returned only with the Police so that in view of the heinous crime committed by him, he needed police protection so that he himself may not be lynched by the friends and relatives of the two victims where were liquidated at his instance? We shall soon find a reply to this query when we shall discuss the evidence adduced by the prosecution witnesses in this case.
As per the evidence of this witness, he reached the P.S. at about 2.30 to 2.35 PM. Then how come that a GDE at his instance gets lodged at the PS as per Ext.6 at 2.15 PM? A perusal of the FIR would show that there is over-writing in the FIR (Ext.2(1) regarding the time. In other words, the GDE appears to be ante-timed and the timings in the FIR possibly manipulated and its lodging delayed up to 16-45 hours probably in connivance with the police to ensure that the accused could show his alibi that he was away from the scene of occurrence during the period when the crime was committed.
I, therefore, completely reject the alibi of this accused in view of the aforesaid irreconcilable discrepancies pointed out by me and proceed to decide the case on the basis of evidence adduced by the prosecution against the accused persons during the trial. PW1(Biswajit Haldar) appears to be a hearsay witness and PW2 (Anwar Ali Mondal) appears to be formal and insignificant witness. PW3 (Rebati Naskar) is the brother of the deceased Gopal Naskar who in his evidence stated, “I know these accused persons (named and identified). Gopal Naskar, one of the victims of this case was my full brother. Swapan Sardar, another victim of this case was know to me.
Gopal read up to class – VIII at Benimadhab High School and thereafter, he left his study. My said brother used to run one poultry in our house. We were in same mess.
On 16th Magh, Sunday before about 3 years in the year 2000 at about 2.30 to 3.00 P.M. myself was cutting one date-palm in our land. It is my profession. Manash Saha, Pravash Naskar, Nirmal Saha, Laltu Saha, Kachi Mondal came to my house. The date palm is just near (to) my house. They en quired my mother as to the whereabout of Gopal. My mother replied that Gopal is inside the house. They asked my mother to call Gopal. My mother called him. Gopal came out of the house. Manas Saha caught hand of Gopal and Manas Saha then and there started assaulting him and the other accused persons whom I have already named started assaulting my said brother. Manas Saha further asked to bring one rope to bind Gopal. One rope was brought and Gopal was tied on his waist. He was started dragging by these accused persos. Gopal sustained bleeding injury on his head. He was dragged to the road. Laltu brought out one small revolver from his pocket and told that it was recovered from Gopal. Those persons took Gopal to Nilan Mandir. I followed them. I caught feet of Manas Saha so that Gopal may be rescued. He gave (me) a kick and told that I can come to know (should be he came to know) later on what Gopal had committed. That Nilan Mandir is at Dharamatala. There is a field also near it. There Gopal was assaulted by Manash, Pravash, Prakash, Nirmal, Laltu, Kochi. My brother was murdered ultimately. Nepal Naskar my younger brother was also with me. These accused persons told that we also be finished. We then left that place out of fear.” This witness further stated that his complaints to the OC., DIG and CID etc. etc. did not lead to any action against the accused persons and he also filed A.D. Cards (Ext.1 series) in support of his having made written complaints to the aforesaid authorities. He in his evidence further stated, “Swapan Sardar and Shyamapada Naskar were also brought by Manas Saha and his party about whose names I have stated. Shyamapada Naskar and Swapan Naskar were assaulted and Swapan ultimately died and Shyamapad managed to escape. Witness volunteers that Shyamapada is at his house which is near my house. They are not the relations of the accused persons.” The evidence of this witness inspires confidence as because, even the FIR lodged by the accused No.1 (Ext.2(1)) refers to the fact that the third dacoit managed to escape away. According to this witness the reason why his brother Gopal was murdered is that there was a property dispute between this witness and the five sons of Adhir Naskar i.e. Prabir, Pravash, Swapan, Prakash and Kachimoni, out of which Prakash and pravash Naskar are accused persons in this case. The defence though grilled this witness thoroughly in their cross-examination, but failed to dislodge him from any material factual evidence given by him in his examination-in-chief.
From the unchallenged testimony of the Dr. Ashim Kumar Mondal (PW13), I find the deceased Gopal Naskar sustained the following injuries:-
Lacerated wound 1 inch x 1/6 inch over upper portion of right ear.
Lacerated wound 1” x half inch into bone deep over right mastoid region.
Lacerated wound 1'” x half inch x scalp deep over left occipital region (placed horizontal).
Lacerated wound half inch x half inch x scalp deep over right parietal region of scalp.
The doctor on dissection of the wounds found that there were extravasation of clotted and liquid blood and fracture of right mastoid process of temporal bone. In addition, the doctor found the following abrasions on the body:-
Two inch x 1 ½ “ over front of left shoulder,
Lateral aspect of right arm 4 inch x half inch,
One inch x half inch x half inch over right lower abdomen.
Two inch x half inch on right scapular region,
Three inch x two inch over back lower chest and upper abdomen,
Multiple abrasions measuring one and half inch x three inches x two inches over front of chest. On dissection, the aforesaid wound revealed extra vasation of blood.
The doctor also found one Haematoma half inch in diameter over lateral angle of the right eye with extra vasation of blood which on dissection revealed that it was a scalp wound with sub-dural haematoma over left side of the brain. The right lobe of the brain had a lacerated fracture at the base of the scalp. The death in the opinion of the doctor was due to shock and hemorrhage following the above mentioned injuries which were ante-mortem and homicidal in nature. Therefore, even the medical evidence fully corroborates the testimony of the eye-witness PW 3(Reboti Naskar) – the brother of the deceased Gopal Naskar. He being a close relative of the deceased, as per Dalip Singh and others v. The State of Panjab, AIR 1953 SC 364 (Vol.40 C.N.81) would be the last person to screen the real culprit and falsely implicate innocent persons. Honible SC in the aforesaid ruling further observed, “........the mere fact of relationship far from being the foundation of criticism of the evidence, is often a sure guarantee of truth.”
PW4 (Satya Bala Naskar) is the mother of the deceased Gopal Naskar and she in her evidence deposed, “This incident took place before three years at noon. I was then at my house. Manas Saha, Laltu Saha, Prakash, Probhas, Nirmal, Kachi Mondal and Ramen (identified) came to my house and called Gopal and when Gopal came out those persons started dragging him away and he was also assaulted by them. I prayed for mercy by touching the feet of Manas Saha, but he did not care. Gopal was taken towards Milan Mandir of our village. Nepal and Rabeti went (to) that Milan Mandir and return(ed) back and reported that my son Gopal was being assaulted by Bamboos and he was tied by rope by these accused persons.” This witness fully corroborated the evidence of her son regarding the incident dated 16-01-2000 and did not exaggerate or embellish her evidence to say that shewent upto the field and saw the accused persons to beat her son till he died. The defence probably justifying killing of her son by the mob suggested to this witness that since after death of her son, criminal activities have been stalled which she refuted by saying, “It is not correct to say that criminal activities have been stalled after the death of Gopal.”
PW10 (Nepal Naskar) fully corroborated the evidence of his brother PW3 (Reboti Naskar) and that of her mother PW4 (Smt. Satya Bala Naskar) in all material particulars and the defence could not demolish any portion of his evidence as well. I don't like to reproduce here his evidence which is of repetitive nature for the sake of brevity.
Now, I turn my attention to find out how death visited another victim Swapan Haldar on the said Black day i.e. 16.01.2000. PW8 (Bappa Haldar), who is the step son of the deceased, in his evidence stated, “I am the son of my late father Swapan Haldar. Jaya was my mother. After the death of my mother, my father married my maternal aunt Chhaya Haldar. She reared me up. Before about three years at about 3 PM I was in my house. My father then almost finished his mid day meal. Then Satya Mondal came to our house and told that Manas Saha has given a call to my father. Manas Saha was found at Milan Mandir field and there my father was assaulted by Nirmal Saha, Laltu Saha. Kachi Mondal, Prakash Naskar, Ramen Haldar, Prakash, Suni Haldar and Manas Saha. The witness identified all the accused persons, but could not identify them all by name. Accused Satya did not put any blow on my father. I have seen the other accused persons to assault my father. They even did not allow me to put water on the mouth of my father.”
Gopal Naskar of our village was also beaten to death. The accused persons about whom I have stated assaulted Gopal by bamboo. Police did not ask me any question. Manas Saha only told the police at the P.O. my name.” The evidence of this witness not only corroborates the evidence of the other witnesses, but also inspires confidence in as much as if we look at the Post Mortem report of the aforesaid deceased (Ext.10), we find that the stomach of the deceased contained 500 gms of partly digested Rice + Vegetables. Obviously, the deceased succumbed to his injuries before even he got enough time to digest the food ingested by him as stated by this witness.
The deceased Swapan Haldar, as per his unchallenged PM report as well as the evidence of the Doctor Ashok Kumar Mondal PW(13), suffered from the following injuries:-
“Haematoma.
Two inch in diameter over center of forehead.
½ inch in diameter over right cheek. On dissection there was collection of blood and liquid blood and fracture of right maxilla.
Abrassions:-
Half inch x 1/4th inch over left infra orbital region.
Two and half inch x one inch front of left chest wall.
Two inches x one inch front of right chest wall.
Three inches x two inches over right scapular region.
Three inches x two inches back of right lower chest and upper abdomen.
Two inch x half inch over right buttock. All abrasions showed extra vasation of blood on dissection. On further dissection of chest wall left 3 to 6th ribs were fractured and collection of blood inside thoracic cavity.
One lacerated wound one and half x half x bone deep over left mastoid process with fracture and extra vasation of left mastoid process. On further dissection, there was subdural haematoma over right side.
One haematoma four inches in diameter over front and lateral aspect of left arm (middle third). On dissection there was collection of blood and fracture of left humerus bone.”
The doctor opined that the death was due to shock and haemorrhage following above mentioned ante-mortem injuries which were homicidal in nature.
The aforesaid medical report not only fully supports the nature of injuries that the victim is supposed to have received on being assaulted by the accused persons in the manner described by the witness PW8(Bapa Haldar), but also shows the brutal manner in which the deceased was subjected to a series of multiple injuries of different types.
PW7 (Chhaya Haldar) is the widow of the deceased who in her evidence narrated the gruesome incident dated 16.01.2000 in the following words, “I am the widow of Swapan Haldar. Swapan Haldar used to reside at Earpur. His parents are already dead. I have two daughters and one son through Swapan. My son is now 16.
Swapan is dead. He was beaten to death before three years. My husband was taking his mid-day meal at 2 PM at his house. Accused Satya (identified) whom I addressed as uncle came to our house and called my husband. Satya further disclosed that my husband will have to go as the call has been given by another accused Manas Saha as I was reluctant to allow my husband to accompany Satya. My husband left with Satya after finishing his meal.
I was following my husband. When my husband and Satya reached near the house of Nani Bagla, accused Pravash, Prakash, Ramen, Laltu, Nirmal, Kachi started assaulting my husband. They took my husband to Milan Mandir Math (field) and on his way he was being assaulted. Myself and my son Bappa followed them to that place. I did not see accused Satya and Manash Saha to assault my husband.
When my husband was taken to Milan Mandir field he was again being assaulted by the accused persons and then I became senseless. When I reached Milan Mandir field the another victim of this case Gopal was already beaten to death.”
In her cross-examination, she admitted, “It is true that Jaya was previously married with another. It is true that Bappa was born our of that wedlock. Naturally, it is true that Bappa is not the son of Swapan. When Jaya started residing with Swapan, Bappa was only 2 years.” Therefore, in spite of the fact she was the second wife of the deceased and Bappa being the son of her sister Jaya from her previous husband born prior to her sister's marriage with the deceased, both these witnesses, it appears, were quite fond of the deceased, which is an indication that the deceased did not lead any life unpalatable to these witnesses. PW7 (Chhaya Handar) denied the suggestion made by the defence Counsel that she swore an affidavit before the Ld. Sessions Judge, South 24 Parganas that she had no grievance against the accused persons. The existence of any such affidavit, if any, on the face of such denial made by this witness would show to what extent the accused Manas Saha is capable of maneuvering not only the police bt also documents in his favour even from the wife of the victim of his crime. Such feudal lords are indeed a rare species. The prosecution could not demolish any portion of the evidence adduced by these two witnesses i.e. PW7 & 8 who are respectively the wife and step son of the deceased. Their evidence is most probable, credible, inspires confidence and is duly corroborated also by the medical evidence discussed earlier. The accused persons, first having caught hold of the deceased Gopal Naskar could not have dragged him to the house of the second victim and then again come back to the Milan Mandir. Therefore, the feudal lord Manas Saha, as transpires from the evidence on record, ordered Satya Mondal to go and bring the other victim i.e. Swapan Haldar as well.
Mohan Sardar (PW9) is a cultivator and he in his evidence deposed, “On 16th January, 200 I was working in the field near Milan Mandir. I heard a hue and cry coming from Milan Mandir field. I went to that place and I found accused Manash Saha to assault Gopal by bamboo. He was accompanied by the other accused persons named and identified. They were also assaulting Gopal and at last Ramen put a rope on the waist of Gopal and threw him on the field of Anukkul Sriti Sangha field. At first Gopal Naskar was beaten and threafter Swapan Haldar was taken to the said field of Milan Mandir. He was also assaulted by all these accused persons by bamboo and even the Gopal did not meet his death and thereafter a big size bamboo was put on the throat of Swapan and Ramen, Koch, Pravash, Prakash and Nirmal rode on that bamboo to finish Swapan and as per the direction of Manash Saha the body of Swapan was taken to the field of Anukul Sriti Sangha by Ramen, Kachi, Prakash.
Manas Saha then went to his house and changed his dress and went to Usthi PS in a motor cycle. The distance between Milan Mandir and Sriti Sangha field is about 100 to 150 cubits. Police came in the evening when I was sitting in the betwl leaf shop of Manik Haldar beyond Milan Mandir.”
I believe the evidence of this witness as because, this evidence also explains as to why the accused No.1-cum-Complainant, despite his evidence to the contrary that he was at the PS from 2.35 to 4.15 PM, even mentioned the names of the two victims in the FIR. The names of the two victs and fact that they were dead can not find a place in the FIR had the accused-cum-Complainant been ignorant of the two victims at the time the FIR was lodged. Had the complainant been at the P.S. from 2.15 PM as per the GDE (Ext.6) till the FIR was lodged at 4.45 PM, and as deposed by him in his defence as DW1, the complainant would not have known the names of the two victims and the fact that they had also expired. Therefore, it is crystal clear that the accused No.1 adopted a completely false Alibi, which got blasted by the documents that he himself was instrumental in getting created. When a false alibi is adopted by an accused, it only leads to confirmation and consolidation of criminal evidence adduced by the prosecution against him. The story of the victims allegedly preparing bombs and hurling the same at the mob is false as no remnants of any exploded bomb were seized and even the I.O. (Sumit Mondal) in his evidence deposed, “At the P.O. no splinter or remblance (should be remnants) of bombs were found at the P.O.” This Court has been successful in unveiling the ugly faces of the dreaded Criminals who constituted the mob and lynched two human beings in the most barbaric manner after denying them their fundamental right under Article 21 of the Constitution which mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Now I would like to enumerate some of the favours the accused Manas Saha received from the Police department:-
This accused on being questioned by this Court replied, “ I am working as an investigator in the office of Director General of Commercial Intelligence and statistics. Since after the incident and filing of the charge sheet I attended my duty as a Govt. servant.” In spite of this he was not arrested by the police in c.w. this case. A charge sheet was filed in this case on 14.06.2000 and ld. SDJM, Diamond Harbour also took cognizance of the case on the same day. He thereafter surrendered before the Court on a day of his choosing on 09.08.2000 and strangely enough he inspite of the C.S. Having been filed against him and others was also granted bail on the same day.
He as we now find, thanks to the tacit connivance of some of the then police officers posted at the relevant PS succeeded in manipulating police record in his futile bid to create a false alibi in his favour as exposed by me. I am not inclined to believe that the delay between lodging of the GDE and the FIR was on account of the reason that the OC had gone to his house to take food. Rather, this appears to have been done to create a plea to show during the trial of murder that during the time the offence was committed, the accused was sitting at the PS.
A look at the two inquest reports would suggest that the sme were nothing more than His Master's Voice as revealed in the FIR and the GDE referred to earlier or suggestions made by the defence to the various prosecution witnesses and there is nothing to show that the versions of the other eye-witnesses, particularly the relative os the two deceased persons was at all taken into account.
Be it as it may, I am of opinion that the prosecution has been able to establish the guilt of the accused persons except that of the accused Satya Mondal beyond all reasonable doubts. Satya Mondal is entitled to an acquittal as because, he did not as per evidence of most of the prosecution witnesses assault any of the two victims. He, it appears merely complied the directions of the accused to call Swapan Haldar without sharing the common intention with the other accused persons to beat him to death. Rather, from the evidence of PW8 (Bappa Haldar) he tried to save his father when the othr accused persons were engaged in assaulting him as he in his cross-examination deposed, “Satya Mondal used to rescue my father Swapan when he was being assaulted by the other seven accused persons.” Therefore, this accused against whom none of the other witnesses stated anything incriminating regarding assault, is entitled to an acquittal. But so far as the other accused persons are concerned, I am of firm opinion,that the prosecution has been able tpo establish their guilt for the offences under Secs.304/34 IPC beyond all reasonable doubts. There may be some insignificant discrepancies in the evidence of the prosecution witnesses here and there, but there is none that cuts deep into the root of the prosecution case in terms of the opinion expressed by Hon'ble SC in State of Rajasthan v. Kalki, 1981 Cri.L.J. 1012 = AIR 1981 SC 1390. Accordingly, both the points are decided in favour of the prosecution and against these seven accused persons namely, 1) Dhrubajoti Saha @ Mans Saha, 2) Nirmal Saha, 3) Kachi Haldar, 4) Laltu Saha, 5) Ramen Haldar, 6) Pravash Naskar and 7) Prakash Naskar.
Ld. Advocate for the defence, during the arguments read copiously from the 161 Cr.P.C. statements of some of the prosecution witnesses, without either drawing attention of such witnesses when thy deposed before this Court, not caring to get such contradictions proved through the I.O. according to the law of evidence and provisions of the Cr.P.C. under Secs.161/162 read with Sec.145 of the Evidence Act. Needless to say, such contradictions, even if they existed, would not have been of any significance in view of the fact that the I.O. it appears was partial to the accused persons, particularly the main accused Manas Saha. The evidence of DW2(Manick Ch. Sadgu) who told this Court that he did not even know before arrival of the police that the two dacoits were dead, does not help the accused persons in any manner, whatsoever. Hence, it is
O R D E R E D
that the accused 1) Dhrubajoti Saha @ Manas Saha, 2) Nirmal Saha, 3) Kachi Haldar, 4) Ramen Haldar, 5) Laltu Saha, 6) Parvash Nashkar and Prakash Naskar are found guilty and convicted for the offences under Sections.304 (Part I) read with Sec.34 of the IPC. They are taken into Judicial Custody and their bail bonds stand canceled. Fix 04.08.2005 for their examination under Sec.235(2) of the Cr.P.C. on the question of sentence.
The accused Satya Mondal is acquitted from the offences under Secs. 304 (Part I) read with Sec.34 of the IPC and also stands discharged from his bail bonds.
( Harjinder Singh )
04-08-2005 Examination of the convicts u/Sec.235(2) of the Cr.P.C. on the question of sentence:- The convict (1) Dhurjati Saha @ Manas Saha on being asked on the question of sentence submits that he is a Govt. employee and his wife is a village Pradhan. He further submits that his wife and two daughters aged about 10 and 3 years are wholly dependent upon him and that there is no other earning member in the family except him and he prays for mercy. (2) The convict Nirmal Saha on being asked on the question of sentence submits that he is a driver of an auto rickshaw and that he was not at all present when the incident took place. He further submits that his wife, two sons aged about 3 years and 1 year and his old parents are dependent upon him and prays for mercy. (3) The convict Kochi Haldar on being asked on the question of sentence submits that he works in a Saw Mill and his mother aged about 80 years, wife, a daughter aged about 5 years and one son aged one year are all dependent upon him and there is no other earning member in the family besides him. He also prays for mercy. (4) The convict Ramen Haldar on being asked on the question of sentence submits that he owns a grocery shop and was earlier a worker of CPM party and later when he joined Trinamul Congress, he has been falsely implicated in this case. He further submits that he has two daughters of marriageable age, one wife and old parents dependent upon him and prays for mercy. (5) The Convict Laltu Saha on being asked on the question of sentence submits that he works in the shop of a goldsmith and is innocent and that he was not present when the incident took place. He submits that he has an old mother, wife, one son aged about 4 and a ½ years dependent upon him and prays for mercy and that at the time of incident he was at Kolkata. (6) The convict Pravash Naskar on being asked on the question of sentence submits that he is a poor person who survives by binding biries. He further submits that his two sons aged about 14 and 12 years, one wife and old parents are dependent upon him and prays for mercy and (7) the convict Prakash Naskar on being asked on the question of sentence submits that he is a labourer and is innocent. He further submits that his wife, one daughter Mrinamoyee aged about 3 months is dependent upon him and prays for mercy. In a nut shell, all the convicts pray for mercy on grounds of their familial liabilities. I refuse to believe that any of the prosecution witnesses who lost their close relatives in the unfortunate incident, would falsely implicate innocent persons and let go the real culprits merely to satisfy their party bosses. Blood is thicker than water. The convicts did not show similar mercy to the victims of the crime when they and their relatives prayed for mercy.
A perusal of evidence on record shows that the two helpless victims were murdered by the convicts in broad daylight and in the presence of the close relatives of the deceased persons and other villagers of Earpur village in the most brutal, grotesque, diabolical, revolting and dastardly manner after the two victims Gopal Naskar and Swapan Haldar were dragged out of their house and brought to the fields of Milan Mandir and beaten to death with complete impunity. The convict Dhrubajoti Saha @ Manas Saha pretending to be a good citizen trying to protect the two victims from the mob, while actually in search of an alibi and being the ring leader of the mob, members whereof propelled by their personal vendetta committed the ghastly crime. Exhibition of such violence, not only completely shatters the confidence of the victims and their self esteem, personal honour, if such victim survives, but it also has an equally bad and negative effect on the people who watch such a barbaric act. Accused No.1 even had the temerity to justify the lynching by the mob, when he in his evidence as DW1 deposed, “The two victims used to drink during day time and commit dacoity in the night. After death of these two dacoits, there is no dacoity in our Anchal till date.” Such a mind set which arrogates to itself the powers of a prosecutor, Judge and executor – all rolled into one and denies all the democratic, fundamental and human rights to the victims and adversely affects the morale of the public, needs to be dealt with an iron hand. Hon'ble S.C. in State of U.P. v. Kishan Chand, 2005 Cri.L.J. 333 observed that Courts should operate the sentencing system so as to impose such sentence which reflects the conscience of the Society and sentencing process has sto be stern where it should be. Hon'ble S.C. in Sushil Murmu v. State of Jharkhand, 2004 Cri.L.J. 1428 enumerated 5 types of cases where even death penalty can be awarded and in my opinion this one falls within the ambit of one of the said five types of cases. But, in this case, my predecessor in office framed a charge u/Sec.304 (Part I)/34 IPC only instead of a charge u/Sec.302/34 IPC and he almost completed recording of evidence of the witnesses exvept that of the doctor PW13 (Ashok Kumar Mondal) which was recorded by me. By then, it was too late to amend the Charge from u/Sec.304 (Part I)/34 IPC to one u/Sec.302/34 IPC without the trial getting delayed further by recalling all the examined prosecution witnesses once again for their further examination in chief and cross-examination if any, and thus compromise with the fundamental right of the accused persons to a speedy trial. Nevertheless, while imposing sentence, I am not prepared to impose any sentence to the convicts lesser than the maximum punishment prescribed by the Statute for the offence u/Sec. 304 IPC which sentence is the minimum punishment that can be awarded for the offence u/Sec.302 IPC. The seven convicts on the black day of 16.01.2000 unleashed a reign of terror in the village Earpur for which the convict Dhurjoti Saha who is a Govt. employee and his cohorts, in my opinion deserve a life term deputation in jail. Since the offence u/Sec.304 IPC is punishable with imprisonment for life and keeping in view the brutal and heinous manner in which the crime was committed, there is no scope of extending the benefit of the benevolent provisions of the provisions of the Probation of Offenders Act, 1959 to the convicts. In my opinion, a sentence of rigorous imprisonment for life and a fine of Rs.10,000/- to each one of the 7 convicts in default to suffer further sentence of S.I. for 10 months each would suffice the ends of justice. I am of the opinion, that the fine amount if realised, should be given as compensation in equal share u/Sec.357 of the Cr.P.C. to PW4 (Satya Bala Naskar) – the mother of deceased Gopal Naskar and PW7(Chhaya Haldar) – the widow of another deceased Swapan Kumar Naskar. Hence, it is
O R D E R E D
that the seven convicts namely (1) Dhurjati Saha @ Manas Saha, (2) Nirmal Saha, (3) Kochi Haldar, (4) Ramen Haldar, (5) Laltu Saha, (6) Pravash Naskar and (7) Prakash Naskar who were found guilty and convicted on 29th day of July, 2005 are hereby sentenced to suffer R.I. for life each and to pay a fine of rs.10,000/- each in default to suffer additional simple imprisonment for 10 months each for the offence u/Sec.304 IPC read with Sec.34 IPC. Seized alamats, if any shall be destroyed six months after the expiry of the of the period of appeal. Let a certified copy of the Judgement be given free of costs to the 7 convicts at once. Request copying Department accordingly.
Half of the fine, if realised, shall be paid to PW4 (Satya Bala Naskar) the mother of the victim late Gopal Naskar and the remaining half of the fine to PW7 (Chhaya Haldar) the widow of the victime late Swapan Haldar. They may be informed accordingly. Let a copy of this Judgment may also be sent to the District Magistrate, South 24 Parganas, Alipore for his information under Sec.365 of the Cr.P.C.
( Harjinder Singh )
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