- (1.) THIS appeal is directed against a judgment and order dated 29th August 2002 passed by the learned Additional Sessions Judge, 1st Court, Jalpaiguri, in Sessions Trial no. 11 of 1999 arising out of Sessions Case No. 168 of 1997 convicting the appellant under section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life as also to pay a fine of Rs. 5000/-, in default to undergo further imprisonment for a period of one year. Briefly stated the facts and circumstances of the case are as follows:-Ratan and Ganesh are the two sons of the deceased couple Madhav and kananbala. Ganesh lent a sum of Rs. 20/- or 30/- to Bibhison (P. W. 6) which the latter did not repay. Ganesh in order to recover his money stealthily took a goat belonging to bibhison and sold the same in the market. Bibhison protested this act of Ganesh whereupon Madhav, father of Ganesh, according to the evidence of the P. W. 6 promised to compensate the loss. The accused Bidhan and five others who were no way connected with this transaction made this an excuse for assaulting Ganesh which was naturally resented by the parents of Ganesh. The case of the prosecution is that the appellant accompanied by the other accused persons armed with deadly weapons retaliated and killed both the parents of Ganesh namely Madhav and Kananbala on 26th september 1994 at about 9 P. M. The appellant along with five others were charged under sections 148,149 and 302 IPC. The appellant was convicted. The five others were acquitted.
(2.) MR. Biplab Mitra, learned Advocate, appearing for the appellant, advanced the following submissions:- 1) the fact that the name of the appellant was not disclosed to the P. Ws. 4 and 9 goes to show that the evidence of the eyewitnesses is open to serious doubt. He added that the fact that the P. Ws. 6 and 7 did not hear about the assailants is also a pointer to show that the evidence of the so-called eyewitnesses cannot be relied upon. We have not been impressed by this submission of Mr. Mitra for the following reasons:- a) P. W. 6 Bibhison is the borrower and the P. W. 7 is his mother. The accused persons, of whom the appellant is one, with an ulterior motive made a common cause which even remotely did not touch them. Bibhison (P. W. 6) was satisfied with the promise made by the deceased Madhav that he would compensate the loss suffered by him arising out of his goat having been sold by Ganesh. Neither Bibhison (P. W. 6) nor his mother Uttambala Roy (P. W. 7) were concerned with the quarrel picked up by the accused persons. It is, therefore, natural for them not to know as to who had capitalised the incident in order to find an excuse to pick up a quarrel with Ganesh which eventually led to assassination of both his parents. b) Neither the P. W. 4 nor the P. W. 9 claimed to be the eyewitnesses of the incident. The written complaint was lodged within three hours from the occurrence of the incident. Both the P. Ws. 4 and 9 admitted that the written complaint was lodged by ratan, elder son of the deceased couple, on the way to taking the deceased Madhav to hospital. Mr. Mitra is banking on the following sentence in the evidence of P. W. 4 "they did not state to me who assaulted him (Madhav)" and the following sentence uttered by the P. W. 9 "i did not hear the accompanying persons as to who murdered madhav and his wife" whereas he admitted that he was informed about the incident. Neither of these two witnesses were asked as to whether they had tried to know the name of the murderer. Sight cannot be lost of the fact that at that point of time everybody including the P. Ws. 4 and 9 were mainly concerned to see the fatally wounded Madhav hospitalised. Both the P. Ws. 4 and 9 admitted that on the way to the hospital police was informed and the written complaint was lodged by Ratan. There is nothing on the record even to suggest that the names of the accused were spelt out after any deliberation. There is no chance of any concoction or fabrication. We are in the circumstances of the view that the fact one of them did not know who had killed the husband and the other did not know who had killed the husband and the wife does not really make the case of the prosecution weak. 2) The second submission advanced by Mr. Mitra is that there are three several versions emerging from the eyewitnesses as regards the incident which according to him are in conflict with each other which are follows:-i) After Madhav was hospitalised he made a dying declaration recorded by the p. W. 18, Deputy Magistrate, which has been marked Ext. 7 and reads as follows:-"i am M. C. Roy. My father's name is Bhognath Roy. Yesterday night at about 8. 30 P. M. one Manik Roy, s/o Hemeswor Roy hit my youngest son. I tried to resist him. Then one Bidhan Roy, younger brother of Manik roy, hit me with a ballam in my abdomen. They used to quarrel with me before also. There were many people with him like Sibu Roy, Bhodo Roy. I have nothing more to say. My full name is Madhab Chandra Roy of Mondalghat. " P. W. 1 Ratan, de facto complainant, deposed as follows: "on the day of occurrence in the evening myself, my father Madhab Ch. Roy, my maternal uncle Adhar Ch. Panwar, my mother Kananbala Roy, my wife Jashoda Roy and my brother Ganesh Roy were present in our house. At that time Bidhan Roy, Shibu Roy, Amiya Roy, Abinash Roy, Subhas roy and Manik Roy entered into the courtyard of our house and called our father. On hearing their call we all came out of our house. My mother had a lantern and a torch in the hand of my father. These persons abused us all in most filthy languages. Bidhan Roy had a spear in his hand. Other persons had lathi in their hands. There was altercation between themselves and ourselves. Bidhan Roy hit my mother on her back by that spear. My mother fell down with bleeding injuries and died on the spot. There was further altercation amongst us with them. Bidhan again hit my father on his belly by that spear. I was also hit by lathi on my leg. We all fled in our room after taking my injured father. Thereafter the accd. persons decamped from the place. "
(3.) P. W. 8 deposed as follows:- "madhab and Kananbala were murdered on 26. 9. 84 at about 8/8. 30 P. M. I was present at the time and place of commission of murder. I saw quarrel between Madhab and his wife Kananbala with those of the accd. persons (the witness. names the accd. persons clearly), at the time of occurrence. Bidhan had a spear in his hand and others had lathis. This quarrel was occurred in the middle between the house of Bidhan and madhab. I heard that the quarrel was relating to a goat. Altercation started between them. Thereafter Bidhan hit Madhab Roy by the spear on his belly. Madhab being injured was being taken by his wife, the mother of ratan named Kananbala to their house. At that time Bidhan hit kananbala by the spear from her behind on her back. Then myself and ratan tried to nurse Madhab by tying a piece of cloth on a piece of cloth. On returning at the P. O. I found that Kananbala was lying dead there. " P. W. 10 deposed as follows:- "bidhan hit Madhab with the spear on his belly. Then Adhar (myself), ratan and Kanan took the injured Madhab to his room. Thereafter bidhan hit Kanan with the spear on his back. Lastly Sibu hit me with lathi on my head by the side of my left ear. I fled away out of fear and returned back after sometime. On my return I found Kanan was lying dead on the ground where paddy thrashed. ";