- (1.) This appeal is directed against a judgment and order dated 7th May 1987 passed by the learned Additional Sessions Judge, Coochbihar in Sessions Case No. 34 of 1979 corresponding to Sessions Trial No. 1(6) of 1980 by which the Appellants Sailendra Nath Sarkar, Khakuri Sarkar and Jatindra Nath Barman were convicted of an offence under Section 302 read with Section 34 IPC and were sentenced to suffer rigorous imprisonment for life.
(2.) The facts and circumstances of this case briefly stated are as follows: On 28th October 1977 Dr. Bhupendra Nath Dey Tarafdar was assaulted by some miscreants. Pradip Nag, sister's son of the said victim, called at the police station to lodge a written complaint. Sisir @ Chhana, younger brother of the said victim also reached the police station. After lodging the written complaint both Pradip and Sisir went to the local hospital for arranging an ambulance. Pradip boarded the ambulance while Sisir followed him on bicycle. By the time Pradip reached the place of occurrence, where the victim was lying, police had also arrived there. Pradip to his dismay noticed an injured and crying Bibhuti, son of the victim, reached the place of occurrence. Blood was oozing from his ear. Upon interrogation he disclosed Sailen had assaulted him. Pradip became apprehensive as regards the safety of Sisir. He told the police officer that his younger maternal uncle Sisir might also be in danger. In the circumstances the police officer asked one of the Sub-Inspectors and two constables to go in search of the said Sisir. Pradip accompanied them in the jeep of the police. Near the house of Ashwini, Pradip found the said Sailen Sarkar rushing towards the house of Ashwini. Soon thereafter Monoranjan came there and informed that Sisir was lying severely injured in the house of Rajen Sarkar. Pradip and the police personnel rushed to the house of the said Rajen Sarker and found Sisir lying in a pool of blood. Upon enquiry they came to know from the victim that sensing danger to his life he had rushed inside the house of Rajen Sarkar. Jatin dragged him and Sailen and Khakuri assaulted him by daos. The victim was shifted to hospital where he died in the afternoon between 3-4 P.M.
(3.) Since the Appellants remained unrepresented Mr. Jyotirmoy Adhikary was appointed amicus curiae to represent them. It has already come on the record that the Appellant Jatin died on 23rd February 1999. By the order dated 5th February 2003 it was recorded that the appeal preferred by the said Jatin the Appellant No. 2 abetted. Mr. Adhikary, learned Advocate advanced the following submissions.;