CHAMARA PRADHANI Vs. STATE

JUDGEMENT

(1.) THE Court of Session has accepted the pathetic story presented by the prosecution and has held it established that owing to a dispute between the deceased Bhagirathi alias Bhagaban Pradhani (hereinafter referred to as the 'deceased') on the one hand and his father Chamara (appellant no. 1) and brother Dibakar (appellant no. 2) on the other as the latter had not been allowing the deceased to cultivate the land given to him as his share the appellant Chamara, being armed with a Tangi (M.O. I) and the other appellant Dibakar, being armed with a Tangia (M.O. II), in furtherance of their common intention to commit the murder of the deceased, assaulted and dealt a number of blows on his neck and head resulting in his death when the deceased, in company with his sister -in -law Saraswati (P. W. - 2), had been distributing 'Bhoga' of the deity Birkam and was in front of the house of the appellant Chamara in the afternoon on June 18, 1978. The appellants stand convicted under Section 302 read with Section 34 of the Penal Code and sentenced thereunder to undergo imprisonment for life.

(2.) OF the items of evidence on which reliance had been placed by the prosecution through the evidence of fourteen witnesses examined by it, the learned Sessions Judge accepted the ocular testimony of P. Ws. 1 and 2 besides that of P. Ws. 4 and 9, examined as witnesses to the occurrence, the evidence of the doclor (P. W. 3) who had conducted the autopsy, the judicial confession (Ext. 14) made by the appellant Dibakar and the evidence with regard to the recovery of M.O. I. produced by the appellant Dibakar at the Police Out -Post, the seizure of his Lungi (M.O. III) and. shirt (M.O. IV) seized from his person, all of which contained suspected stains of blood and the recovery of M.O. II with suspected stains of blood in it from a stack of wood in the courtyard of the house of the appellant Chamara. The learned Judge did not accept the evidence with regard to an extra -judicial confession said to have been made by the appellant Dibakar before some of the prosecution witnesses. Of the witnesses to the occurrence, P. Ws. 4 and 10 had been cross -examined by the prosecution under Section 154 of the Evidence Act as according to it, they had resiled from some incriminating statements said to have been made by them against the two appellants in the course of investigation.

(3.) AS to the production of M.O. I with the suspected stains of blood at the Mundiguda Police Out -Post before the Assistant Sub -Inspector of Police (P. W. 13), it may be kept in mind that even according to the prosecution case itself, this was not the weapon of attack carried or used by this appellant and it was allegedly in the hands of the other assailant, namely, his father Chamara. The evidence of P. W. 13 was that the wearing clothes (M. Os. III and IV) of this appellant had also been seized by him. He had not stated in his evidence that these two articles had suspected stains of blood. On chemical examination, blood was detected in M. Os. I, III and IV, but the origin of blood could not be determined. There is thus no evidence that the M. Os. I, III and IV contained human blood. The recovery of M.O. II, which had allegedly been used by the appellant Dibakar in assaulting the deceased, was said to have been made from the courtyard of the other appellant Chamara. There was no evidence that it was not an accessible place. Besides, neither the statement of the appellant Chamara nor that of the appellant Dibakar had led to its discovery. In the absence of evidence showing that both the appellants or either of them had concealed the article in the stack of wood, the recovery of M.O. II could not be a guilt -pointing circumstance against them. No human blood had been detected in it. The recoveries, by themselves, would not be conclusive proof of the guilt of the appellants and could only support the other evidence pointing to their guilt.