- (1.) This Jail Appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, 3rd Court Midnapur on 7-8-2003 in Sessions Trial No. XLIV/Oct 2001 arising out of G. R. Case No. 1085/2000. By the aforementioned impugned judgment, the Appellant Dhiren Barik was found guilty of the charge under Section 302 IPC for causing the murder of Bhupati since deceased and also of further charge under Section 325 IPC for causing voluntarily grievous hurt to the deceased's minor son Santanu. He was convicted thereunder accordingly. The convict was sentenced to suffer life imprisonment and to pay a fine of Rs. 1000/- in default whereof to suffer one month S. I. for the first count of charge and was also sentenced to undergo four years R. I. for the second count of charge vide order dated 8-8-2003. Both the sentences were ordered to run concurrently.
(2.) Factual matrix of the prosecution case leading to filing of the present appeal may be summarized as under: (i) On the auspicious day of car festival i.e. on 18th day of Ashar 1407 BS corresponding to 3-7-2000 at about 10-45 p.m. one Bhupati Barik of Talda village within P. S. Datan was stabbed to death by the present Appellant Dhiren Barik and his dead body was; found lying by the side of moram road of Krishnanagar mouza within P. S. Belda. Both the assailant and deceased used to sell channa at Sayrapara Bazar, for last 15-16 years. In the evening hours of the fateful day both of them were seen talking over the money matter in the chariot festival fair at Sayrapara Bazar by co-villagers. At the material point of time the deceased was returning from Sayrapara Bazar along with his minor son Santanu (PW-5) on his bicycle being followed by the Appellant and some of the co-villagers. Some people of Bablapur village also saw the deceased to argue with the assailant on the paving by the side of the road at about 10.30 p.m. at that fateful night. (ii) Immediately, after the incident of stabbing the Appellant made good his escape from the P. O. and on his way to Sayrapara Bazar Fair he dashed one of the co-villagers namely Aswini Das(PW-2) causing fall of both of them on the ground from their respective bicycle. Bidyut Batik focussed torch on the person and the assailant was recognised by PW-1 and other co-villagers. Bidyut Barik, PW-1 and other co-villagers, proceeded a Short distance and found the deceased lying in a pool of blood by the side of the road and his minor son Santanu was found weeping. It was reported by Santanu (PW-5) to the FIR maker and other co-villagers that the Appellant had an alteration with the deceased and he slashed the neck of Bhupati with a knife. When the son raised a hue and cry, he was also assaulted on his left hand and arm pit with the same knife. The injured son of the deceased was shifted to Nekursini Christian Hospital for medical treatment. (iii) An FIR unfolding narration of events as above was lodged by Bidyut Barik the nephew of the deceased on the following day giving rise to Belda PS Case No. 89/2000 dt. 4-7-2000 under Sections 302/324/307 IPC. Prior to its initiation one U/D case No. 25/ 2000 dt. 4-7-2000 was also started and the same was tagged with the said Belda PS Case which was endorsed to S.I. Amiya Kumar Kar for investigation. (iv) In course of investigation the I.O. prepared the Inquest Report (Exhibit 2/3) of Bhupati Barik aged 35 years in the presence of four witnesses and also a Seizure List (Exhibit 6/1) in respect of blood stained wearing apparels of the Appellant and the old bicycle used by the Appellant at the relevant point of time. He also collected PM Examination Report of the deceased (Exhibit 5)A rough sketch map of the P. O. together with its index (Exhibit 8) was prepared by him. The Injury Report of Santanu Barik ('X' for identification) was also collected by the I. O. from Nekursini Christian Hospital. He also examined all available witnesses during investigation. On completion of investigation he submitted the charge-sheet under Sections 302/307/34 IPC in G. R. Case No. 1085/2000 against the Appellant. (v) The case, being sessions triable one, was committed to the Court of Sessions in accordance with the provision of Section 209 Code of Criminal Procedure by the ld.SDJM Midnapore vide order dt. 19-9-2001. The Appellant was asked on 18-5-2002 to answer the following charges: That you, on or about the 3rd day of July, 2000, corresponding to the 18th day of Ashar, 1407 B.S. at Krishna Nagar P.S. Belda, Dist. Midnapore, committed murder, by intentionally or knowingly causing the death of Bhuptai Barik and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and within the cognizance of this Court. Secondly. That you, on or about the same day, and at the same place, did not act, to wit, caused hurt to Shantanu Barik, with such intention or knowledge, and under such circumstances that, if by that act, you had caused his death, you would have been guilty of murder, and that you caused hurt to the said Shantanu Barik by the said act, and thereby committed an offence punishable under Section 307 of the Indian Penal Code, and within cognizance of this Court. Thirdly. That you, on or about the same day and at the same place, voluntarily caused grievous hurt to Shantanu Barik, by means of knife, which is an instrument of cutting, and thereby committed an offence punishable under Section 326 of the Indian Penal Code, and within the cognizance of this Court. The Appellant, however, pleaded not guilty to the afore-quoted charge and claimed to be tried. Accordingly he was put to trial. (vi) On consideration of the entire evidence on record adduced during trial, the learned Trial Court convicted the Appellants under Sections 302/325 IPC and also passed necessary sentence as already indicated earlier.
(3.) Feeling aggrieved, the Appellant preferred the instant Jail Appeal through the Superintendent, Midnapur Central Correctional Home on 16-8-2003 on the ground that the order of conviction and sentence impugned is manifestly unjust, incorrect and illegal inasmuch as it is against the weight of evidence on record and further that the charge of murder against the Appellant is biased and motivated and the learned Court failed to unearth the truth. It was further contended therein that the prosecution witnesses is highly interested and partisan in nature and character. This Court engaged Sri. Rashbihari Mahato, ld. Advocate of senior panel with a junior of his choice to defend the case of the Appellant vide order dated 12-9-2003. After hearing the learned Counsel for the Appellant this Court admitted the appeal for hearing vide order dated 16-9-2003.;