NARAYAN CHANDRA SIL,J. - (1.) THIS appeal was directed against the judgment and order of conviction dated 11.1.1993 passed by Sri B.B. Chatterjee. Additional Sessions Judge. 3rd Court. Midnapore in connection with Sessions Trial Case No. 4 of September, 1991 for the offence under Section 302/34 read with Section 307/34 of Indian Penal Code. The learned Sessions Judge was pleased to impose life imprisonment and a fine of Rs. 1,000/ - to each of the appellants for the offence under Sections 302/ 34 and 307/34, I.P.C. who abstained from imposing any punishment for the offence under Section 302/34 and 307/34. I.P.C.
(2.) IT is stated. inter alia, that the learned Judge failed to consider the various infirmities appearing in the evidence adduced by the prosecution and the judgment of the learned Judge is based on conjectures and surmises. It is also stated that the learned Sessions Judge did not consider the materials appearing in the cross -examination of the witnesses. It is also taken on the grounds of appeal that the appellant No. 4 was a minor at the time of alleged incident and as such his trial along with the other appellants is not sustainable in law. It is also pointed out that it is clear from the evidence of the P.Ws. 4 and 6 that whatever, was allegedly done by the appellants it was in exercise of the right of private defence of property and person which escaped the consideration of the learned trial Judge and as such the conviction of the appellants is not warranted by law. It is again stated that the evidence of P.Ws. 4 and 6 as regards the assault on PW. 6 by the appellant Nos. 2 and 3 was falsified by the evidence of the doctor the PW. 16. It is again stated that the learned Judge failed to consider the evidence of the alleged eye -witnesses regarding assault on Jimut Bahan by the appellant Nos. 3 and 4 which does not find any support from the evidence of the PW. 5. the autopsy surgeon. The prosecution case in a nutshell runs like this. On 16.6.1990 at about 7 a.m. one Pratima, the grand -daughter of Jimut Bahan and the daughter of Dulal went to their cultivable land and found that the outlet of their land for draining out the excess water was blocked by placing clay by the accused persons who are all agnatic relations of the prosecution party. At this Jimut Bahan and his son protested and asked the accused persons to remove the blockade and thus an altercation ensued when the accused Khagen all of a sudden assaulted Dulal on his head and other parts of his body with tangi (a sharp cutting weapon fitted with a handle) causing injuries on his person. Jimut Bahan father of Dulal tried to resist the accused persons assaulting Dulal but the accused Khagen gave a tangi blow on his throat while the other two accused persons Dayal and Timir started assaulting Jimut Bahan and Dulal with lathis. Jimut Bahan subsequently succumbed to his injuries. The incident happened in presence of Pratima who reported the same to her maternal grand -father who lodged the FIR with the Police Station. There was a dispute prevailing between the parties over the landed properties and the same ultimately culminated into the incident.
(3.) IT appears that the Trial Judge had framed charge under Section 302/34 and also under Section 307/34 against all the 4 accused persons who had pleaded not guilty and claimed to be tried. As many as 16 witnesses were produced by the prosecution before the learned trial Court. After conclusion of the trial the learned Judge was pleased to find all the accused persons guilty for committing offence under Section 302/34 and also under Section 307/34 of Indian Penal Code. During the pendency of the appeal the convict/appellant Guiram @ Putia Chetial had died. It may also be mentioned here that no ground has been taken by the appellants at the time of argument before us that the appellant No. 4, Timir Chetial was a minor at the time of occurrence. On scrutiny of the records there nothing that any such plea was taken before the learned Trial Judge also.;