- (1.) This appeal is directed against a judgment dated 1st September 1998 passed by the learned Additional Sessions Judge, Nadia, 2nd Court, Krishnanagar, in Sessions Case No. 15(9) of 1997 corresponding to Sessions Trial No. 6(VII) of 1998 by which the learned Trial Court convicted the Appellant Sanjit Sarkar of the offence punishable under Section 302 IPC and the rest of the Appellants were convicted of an offence punishable under Section 323 IPC. By an order dated 2nd September 1998 the convict Sanjit was sentenced to suffer imprisonment for life as also to pay a fine of Rs. 1000/-, in default to suffer further rigorous imprisonment for a period of six months. Rest of the convicts were sentenced to suffer rigorous imprisonment for one year each as also to pay a fine of Rs. 1000/- each for the offence punishable under Sections 323/34 IPC, in default to suffer further rigorous imprisonment of six months each.
(2.) The facts and circumstances of the case are as follows: Sanjit, Arijit, Shankar and Ranjit are the four brothers and the accused Bimala is their mother. The victim Abani Sarkar was the uncle of the Sarkar Brothers. The aforesaid Sarkar Brothers are the sons of late Jiban Sarkar. The victim Abani was the younger brother of the said Jiban Sarkar. On 6th October 1998 the victim had been to his field and in the afternoon he found two bundles of jute missing. He formed an opinion that his nephew Shankar might have stolen the same. He returned home and aired his grievance alleging that Shankar had stolen two bundles of jute. While the victim and his family members were sitting in the verandah of their house the accused persons broke in upon them demanding an answer as to why he had called Shankar a thief. They together started assaulting the victim while one of the accused persons namely Sanjit suddenly rushed back to his house and reappeared with a sorkey (a pointed weapon) and drove the same into the backside of the chest of the victim. The victim as a result died on the spot. The evidence of the eyewitnesses in that regard is as follows: P.W. 3, wife of the victim, deposed as follows: My husband Abani had been murdered in front of my house on 6.10.88. At the relevant time I was at my house. The rotten jute- stick were stock from our ditch. Accd. Sankar Sarkar had washed that jute-stick when my husband enquired about the theft of said jute stick to (illegible) after returning home in the evening. My husband told that he might have taken away jute stick (from jaga) when my husband was sitting on our verandah with my two sons. Then the accused Sankar, Arijit, Ranjit, Sanjit and Bimala (illegible) attacked upon my husband. Accused Arijit had pulled on the hair of my husband and felled him down in our courtyard in front of my room. All the accused persons had assaulted my husband by fists and blows and with torchlight and compelled him to lay down on the floor. My husband's elder brother Raikrishna Sarkar and his son Lakshikanta Sarkar had asked the accused persons as to what they were doing. I along with P.W. 1 Lakshikanta Sarkar had tried to take away my husband to our house but all on a sudden Sanjit had brought one pointed weapon with cover and pierced the said weapon on the backside of my husband as a result my husband succumbed to that injury. The accused persons thereafter fled away after abusing us and they also threatened me and my son with dire consequences. All the accused persons are present on the dock (idfd.). After the sradh ceremony of my husband I went away and took shelter at Anandapalli, P.S.-Karimpur. I was not examined by the police nor stated before the police anything to that effect at the relevant time as my mental equilibrium was not so good.
(3.) P.W. 7, son of the victim who at the relevant time was only 11 years of old deposed as follows: Abani Sarkar (since deceased) was my father. Previously we were the residents of village Chamna. At present we are residing at Karimpur. I along with my mother, my elder brother Amal Sarkar, my father and my Jethima Saraswati Sarkar used to reside at our house at Chamna. On 6.10.88 my father had been murdered at about 7.15 P.M. in front of our house in our courtyard at Chamna. At the relevant time I along with my elder brother Amal Sarkar and mother were sitting beside my father at our verandah. Accused Ranjit, Sanjit, Arijit, Sankar and Bimala Sarkar attacked upon my father on the plea as to why my father called them thief. All on a sudden accused Arijit had dragged my father and felled him down in our courtyard. Other accused persons also had attacked upon my father along with my Jethima Bimala. My mother and my Jetha Raikrishna had forbidden the accused persons not to do anything. My mother and P.W. 1 Lakshkanta had tried to take away my father to the verandah of our house. Then all on a sudden accused Sanjit had rushed to the room and brought one sharp cutting weapon and pierced the said weapon on the back by the side of backbone of my father. My mother had pressed her cloth on the wound of my father. Subsequently my father succumbed to his injuries. All the accused persons are present on the dock. (idfd.);