- (1.) THIS appeal is directed against a judgment dated 10th October 2001 passed by the learned Special Judge cum Additional Sessions Judge, Coochbehar in Sessions Trial no. 5 (9) of 2000 arising out of Sessions Case No. 85/98 convicting the appellants for offences punishable under section 302 read with section 34 and under section 448 read with section 34 of the Indian Penal Code and an order dated 11th October 2001 by which the accused Dhiren Byadh, Fulchand Roy and Kalu Byadh were sentenced to imprisonment for life as also to pay a fine of Rs. 5000/- each, in default to suffer further rigorous imprisonment for a period of two years for the offence punishable under section 302 read with section 34 IPC. They were also sentenced to suffer rigorous imprisonment for one year each for the offence punishable under section 448 read with section 34 IPC. The sentences awarded to the appellants were ordered to run concurrently. The convicts have come up in appeal. Briefly stated the facts and circumstances of this case are as follows:-On 17th November 1996 at about 11 P. M. in the night when everyone in the house was asleep except for the children who had gone to watch theatrical performance in the neighbouring villasge the accused Dhiren, Phoolchand, Hagu and Kalu accompanied by three unknown persons armed with lethal weapons broke into the house of Ramgopal Dev Adhikari since deceased. There were four rooms in the house of the deceased Ramgopal. The deceased was sleeping in the northern room. His wife was sleeping in the eastern room and his wife's sister Bhabani was sleeping in the room adjacent to the room occupied by her sister namely Manodini the wife of the victim. A lantern was burning in the bedroom of Ramgopal. At about 11 P. M. Bhairabi, defacto complainant, heard a knocking at the door of the bedroom of the deceased. The deceased called out Bhairabi requesting her to respond since someone was knocking at the door. By the time Bhabani arose from the bed Dhiren, Fulchand, Hagu and Kalu had already entered into the bedroom of the deceased Ramgopal. Ramgopal prayed for mercy calling out the names of his assailants. Bhairabi peeped through the door and saw the aforesaid four accused persons assaulting her brother-in-law. Fear stricken bhairabi sought to escape from the place of occurrence when to her dismay she found another three persons guarding on the door armed with lethal weapons standing near the door of the room occupied by her sister Manodini. Bhairabi screamed Kumu barman came running. By that time the assailants had escaped and the dead body of ramgopal was lying near the Alna of the said room. The wife of the victim fainted seeing her husband dead. After the children of the deceased returned home Bhairabi narrated the incident to them. In the morning at about 7. 15 A. M. a written complaint was lodged with the police. The three unknown persons on the guard were subsequently identified by Bhairabi during the T. I. Parade. After investigation eight persons were charged for offences under sections 302/448 read with section 34 IPC. The accused Hagu died during the pendency of the trial. Four of them were acquitted and the rest three were convicted and sentenced as more fully indicated hereinabove. Before we consider the submissions advanced by Mr. Bag, learned Senior advocate, appearing in support of the appeal we would like to discuss the evidence on the record briefly.
(2.) DURING her cross-examination the P. W. 1 Bhairabi admitted that one Sushil Beria of Siliguri had purchased many plots of land of the village. The deceased Ramgopal in the aforesaid deal had acted as a negotiator and had earned wrath of some of the villagers. She admitted that she was a member of the CPI (M) party. She also admitted that the miscreants paraded for test identification were already known to her by reason of the fact that she had been living in the village with the family of the deceased for the last 18-20 years. She was suggested that the accused were supporters of Congress Party and out of grudge she had identified them during the test identification parade which she denied. She was also suggested that there was no hurricane burning in the room of the deceased when the assault took place which she also denied. P. W. 4 Sasadhar Roy deposed about a conspiracy hatched by the appellants amongst others and his evidence in that regard is as follows:- "about 5/6 days prior to the date of incident, I was passing by the road in front of the house of Sirish Barman. I found that a discussion was going on in between 10/12 persons in the house of Sirish Barman. From the voice, I identified Hagu, Fulchand, Dhiren Byadh, Dinabandhu Byadh as the persons present there. In the discussion, there was an allegation against Ramgopal Dey Adhikary on the ground that he arranged for purchase of land by one Sushil Beria by which the people of said area became landless, Ramgopal Dev Adhikary gave information to the police that those persons consumed goose of another etc. During said discussion, one of them proposed to murder Ramgopal Dev Adhikary and sirish Barman told them that he had persons for doing said act. Later I cautioned Ramgopal Dev Adhikari and told him about the said discussion. " P. W. 5, the widow of the deceased deposed that her deceased husband had a dispute with the accused persons because he was instrumental in the sale of various plots of land of the village to Sushil Beria. P. W. 7 Dharmanath, son of the deceased, corroborated the evidence of his mother the P. W. 5. P. W. 8 Basanti, a neighbour, deposed that about 10/12 days prior to the incident sirish Roy had told her that Ramgopal was not likely to survive and he should be given whatever he wanted to eat. Sirish Roy is the person in whose house the conspiracy to kill Ramgopal, according to the P. W. 4, was hatched. Sirish Roy was not interrogated by the investigating agency which fact was admitted by the I. O. (P. W. 10 ). From the evidence discussed above the fact that the deceased had earned wrath of some of the villagers is well established. The fact that the appellants were inimical to the deceased is also established.
(3.) BHAIRABI is the sole eyewitness in this case whereas Bhairabi and her sister manodini are the ear witnesses. The evidence of the P. W. 1 Bhairabi pertanining to the incident in question is as follows:- "around 11 P. M. at night some miscreants forcibly knocked the door of north viti room of Ramgopal. Hearing the sound he raised an alarm and called me. Hearing said call I came out from my room very silently and peeped into the room of Ramgopal and found that the door of his room was wide open and one hurricane was burning inside the room. I found Fulchand Roy, Kalu Byadh, Dhiren Byadh and Hagu Roy to assault ramgopal with lathi. I found only those persons inside the said room. I also found some sharp cutting weapons in their hands, Ramgopal shouted by calling the names of those persons and prayed for mercy for his life. On fear I retreated and found that there were unknown persons standing in front of the door of east viti room in which my sister was staying. I noticed their faces carefully. My sister could not come out from her room. Then I went out from our house by breaking Patkari Bera and raised alarm. But no villager came forward at first. Then Kumu Roy came and I told him that those four miscreants (named) were assaulting Ramgopal. On returning I found that accused persons already left by breaking the northern fencing of the room. At that time the hurricane was found to be off. I found that Ramgopal was lying near Alna on the southern side of said north viti room. I also found bleeding injuries on his person. Then I and Kumu took up Ramgopal to the varandah of the north viti room. I found one penetrating wound of dagger in the left rib and one penetrating wound of ballam in the right side of the body. At that time Ramgopal was found already dead. The daughters and son of Ramgopal returned home around 3 at night. I narrated the incident to them also. " Within hours after the incident from the house of the deceased controlled and bloodstained earth, broken fencing material, two lathis, a hurricane and some other articles were seized. The seizure list has been marked ext. 2.;