- (1.) This appeal is directed against a judgment and order dated 28th February 1995 and 2nd March 1995 respectively passed by Shri S.P. Sarkar, Additional Sessions Judge, 2nd Court, Balurghat, Dakshin Dinajpur, in Sessions Trial No.23 of 1990 arising out of Sessions Case No. 58 of 1984 by which the accused no.(1)Felu Rajbanshi, (2)Rashu Rajbanshi, (3)Nakul Mahato, (4)Etowari Mahato, (5)Lochan Saha, (6)Raghu Saha, (7)Jamini Mahato, (8)Balai Roy, (9)Shyamapada Rajbanshi, (10)Bihari Mahato, (11)Khagen Mahato and (12)Ramratan Rajbanshi were found guilty under section 148 of the Indian Penal Code and were directed to suffer rigorous imprisonment for three years as also to pay a fine of Rs.1000/- each, in default to suffer further six months rigorous imprisonment for the offences under section 148 of the Indian Penal Code. The accused Felu Rajbanshi was in addition convicted for an offence under section 436 of the IPC and was sentenced to suffer rigorous imprisonment for 10 years as also to pay a fine of Rs.2500/-, in default to suffer further rigorous imprisonment of one year. The accused Lochan Saha and Nakul Mahato were also found guilty of offences under section 324 read with section 149 of the IPC and were sentenced to suffer rigorous imprisonment for three years. The said accused Felu Rajbanshi, Rashu Rajbanshi, Nakul Mahato, Etowari Mahato, Lochan Saha and Raghu Saha were also convicted under section 302 read with section 149 of the IPC and were sentenced to suffer rigorous imprisonment for life as also to pay a fine of Rs.5000/- each, in default to suffer further rigorous imprisonment for 2 years for the aforesaid offences. All the substantive sentences were directed to run concurrently. The accused Bifal Rajbanshi and Premlal Mahato were acquitted. The accused Saheb Ram Rajbanshi died during the pendency of the trial. The accused Manohar and Ratan Saha died even before the charge was framed. The accused Raghu Nath Rajbanshi was absconding and therefore the case as against him was filed for the time being.
(2.) The prosecution case briefly stated is as follows:- On 8th Sravan 1386 B.S. the P.W.4 Nimai Mahato was dispossessed of the agricultural land bearing plots no.4148, 4149 and 4410, situate at Mouza-Bagdua in Healdaha village, standing in the name of Umabala Mahato and Sundari Mahato, the aunt and grandmother respectively of the P.W.4, by Manohar Mahato and his associates.
(3.) On 13th Sravan 1386 B.S. corresponding to 30th July 1979 the P.W.4 was transplanted paddy in his aforesaid plots of land with the help of 5 labourers namely Ganesh Mondal(deceased), Mahanta Mahato (P.W.7), Fakir Mahato, Bhiku Mahato (P.W.6) and Sonaram Mahato. After completion of the paddy transplantation P.W.4 along with his labourers came back to his house. Soon thereafter the P.W.4 Nimai and his aforesaid labourers were ghearoed by Manohar Mahato, Etowari Mahato, Lochan Saha, Raghu Saha, Jamini Mahato, Balai Roy, Felu Rajbanshi, Rashu Rajbanshi, Shyamapada Rajbanshi and Bihari Mahato. They were armed with hasua, farsa, lathi and other lethal weapons. The confinement continued. According to Bhiku (P.W.6) Mahanta had taken shelter in the house of Shyama Chand Mahato and Sonaram had managed to escape. In the night of 13th Sravan 1386 B.S. there was a marriage ceremony in the house of Satish Sarkar in the adjacent village Kodabari which was attended amongst others by the victims Gosai Das (P.W.8), Khirod (P.W.10) and the deceased Premdas. The mother of Ganesh, one of the labourers, engaged by the P.W.4 Nimai who was in confinement as stated above, complained to the said Gossai, Khirode and Premdas about the aforesaid incident and requested them to have her son and the other labourers released from confinement. On 14th Sravan 1386 B.S. that is to say the following morning Khirode and Premdas rescued the labourers including P.W.6 Bhiku and the victim Ganesh. According to Khirode (P.W.10), he accompanied by Premdas, came to the house of Nimai Mahato and rescued Ganesh, Bhiku, Fakir and Mahanto. When all these six persons came near the house of Manohar the latter raised alarm. P.W.10 Khirode requested Manohar to settle the matter which was not heeded to. Manohar accompanied by Nakul, Lochan, Etowari, Jamini and Felu started assaulting Khirode (P.W.10) and the said Premdas. Ganesh, Mahanta and Fakir fled away. Bhiku (P.W.6) however stayed back. Khirode, Premdas and Bhiku were severely assaulted. They ran towards the house of Nishipada. At that place Lochan assaulted Premdas with a lathi. Premdas fell down. Other assailants joined Lochan. Khirode tried to lift Premdas. Manohar exhorted Nakul to chop him. Nakul dealt a blow with a farsa on the shoulder of Khirode. Khirode sustained deep cut injury on his shoulder near the neck. He ran for his life and fell near the house of Thakurdas. Gossai was also assaulted. Around 10/10.30 A.M. P.W.1 Charubala, widow of Sudhanya, was serving meal to her husband and his brother Ganesh. At that time Manohar, Ratan, Rashu, Felu, Raghu Mahato, Jamini Mahato, Nakul, Raghu Rajbanshi, Bihari, Shyamapada accompanied by others armed with deadly weapons broke into the house of P.W.1. They assaulted the P.W.1, her sister-in-law, her mother-in-law and her daughter and drove them out of the house. The room in which Sudhanna and Ganesh were served food was bolted from outside. It was a room made of bamboo-splinters. The accused Felu brought fire from the house of Rati Rajak and set the hut on fire. Sudhanna, the husband of the P.W.1, managed to come out of the hut through the thatch of the room and escaped to the house of Rati Rajak. The aforesaid persons chased Sudhanna in the house of Rati Rajak; killed him there and brought out the remains of Sudhanna in front of the house of Nishipada. The minor daughter of P.W.1 was also thrown in the fire. Near the house of Nishipada dead body of Premdas was already lying. Ganesh was burnt alive. The evidence of P.W.1 has been corroborated by the evidence of Pannobala (P.W.3) the widow of Ganesh and Mira Razak the daughter-in-law of Rati Razak. P.W.14 conducted postmortem. According to his evidence Sudhanna, aged about 40 years, died due to asphyxia and shock which was due to burn and several lacerated wounds which were of ante-mortem and homicidal in nature. He also conducted the postmortem of Premdas, aged about 38 years. According to him, Premdas died due to shock and haemmorage as a result of cut-throat wound which was ante-mortem and homicidal in nature and the injury was sufficient to cause death in the usual course of nature. P.W.14 also conducted the postmortem on the dead body of Ganesh aged about 25 years. His death, according to him, was due to asphyxia and shock as a result of a burnt injury which was ante-mortem. On 31st July 1979 P.W.16 Dr. Bimalendu Sarkar examined Khirode Chandra Bhakta. He found a gaping wound about 3 long X 2" X bone deep over posterior part of the neck. P.W.17 Dr. Samajdar on 31st July 1979 examined Gosai Das, aged about 50 years, who had suffered a gaping incise wound 5"X 2 -X bone deep over upper part of left side of the back near shoulder joint. Both P.W.16 and P.W.17 deposed that the injuries were grievous in nature. P.W.15 Dr. Debnath examined the P.W.1 Charubala. She was found to have suffered injury due to strikes by hard and blunt weapon like lathi. Dr. Debnath also examined Panobala (P.W.3). She also had suffered injury due to strikes with hard and blunt weapon like lathi on her back. Another woman Bhutia Dasi was found to have lacerated cut injury on the left forearm. A few other persons injured in the same incident were also examined and treated by him which it is not necessary for us to dilate. The learned trial Judge after examining the evidence in great detail arrived at the following finding.;