- (1.) The appellants challenge in this appeal the judgment by the learned Additional Sessions Judge, Alipore convicting the accused for an offence under Section 364 read with Section 34 I.P.C. and sentencing them to suffer Rigorous imprisonment for seven years and also to pay 4 fine of Rs.1000/- each. Initially all the accused persons were also charged for the offence under Section 302 I.P.C. However, the trial Court has not convicted them for an offence under Section 302 I.P.C. though there is no clear order of their acquittal anywhere in the judgment. It is only to be presumed from the judgment that all the accused have been acquitted of the offence under Section 302 I.P.C.
(2.) Shortly stated the prosecution case was that the accused persons used to run a distillery at a village called Buita (perhaps illegally) and one Sannyashi Singh used to work with them at a monthly salary of Rs.150/-. That there was some dispute on account of the arrears of wages of Sannyashi Singh as he was not paid the same. He is therefore alleged to have broken some pitchers containing molasses and therefore on the day earlier to the fateful day at about 9-30 p.m. the accused persons had come in search of Sannyashi Singh and complained to his father-in-law Dudh Kumar Santra that his son-in-law. Sannyashi had caused damage to their distillery and therefore, they wanted to take him with them and would not allow him to go to his house so long as he compensated the loss. The said Dudh Kumar did not allow Sannyashi to go along with them. About 8 a.m. on the following day, the accused persons again came to the house of the complainant Dudh Kumar and represented that since the damage was already done, there was no point in any quarrel over the issue and further said that they would take Sannyashi with them for doing his work as usual. It is the case of the prosecution that Sannyashi thereafter never returned from his place of work and hence a search began whereupon Sannyashi was found lying dead near the said distillery. This was reported to Dudh Nath who also went and saw his son-in-law lying dead and therefore, on the following morning then informed the incident to the police at Budge Budge Police Station which was registered as Case No. 26 dated 18.8.1980. The usual investigation was carried out and after recording the statements of the witnesses etc, the charge-sheet came to be filed for the offence under Section 302 I.P.C. read with Section 34 along with Section 364 read with Section 34 I.P.C,
(3.) The matter was committed to the Court of Sessions and before the Sessions Court, the defence was that of denial. The accused denied the very existence of the liquor distillery. They also denied that Sannyashi Singh ever worked with them or there was dispute between them and Sannyashi on account of any wages etc. Their case was that they were falsely implicated in this case due to party rivalry. At the stage of trial, the prosecution relied on the evidence of the persons who had seen the accused persons having visited Dudh Kumar on the previous night. Some witnesses were examined to suggest that deceased Sannyashi Singh had accompanied the accused persons. Some witnesses were also examined to suggest that the accused were actually seen in the afternoon at the said distillery and rest of the witnesses were examined to suggest that Sannyashi was found dead on 18.8.1980. Some police witnesses were also examined along with the doctor.;