BAIDYANATH ROY Vs. STATE OF WEST BENGAL

LAWS(CAL)-2008-8-90

HIGH COURT OF CALCUTTA

Decided on August 18,2008

BAIDYANATH ROY Appellant

VERSUS

STATE OF WEST BENGAL Respondents

JUDGEMENT

- (1.) FACTS: 1. 1 Appellants cultivated paddy on a land belonging to Late A. B. A. Gani Khan chowdhury. On Saturday being November 11, 1983 at about 10. 30 A. M. the appellants were harvesting paddy from the said land when Kalipada Roy along with Chera Roy, bhanu Roy, Paltu Roy, Biji Roy, Deben Roy and Karpul Chandra Roy proceeded towards the land in order to harvest the paddy. Baidhynath and others obstructed them armed with sticks, farsa, arrows and other weapons. As a result there had been a free fight between two groups. According to prosecution Kalipada Group being over powered by Baidyanath group left the place for fear of life without harvesting paddy. At about 5. 30 P. M. on the same day when Deben was coming from the hut he was assaulted by baidyanath and others. One Santu Roy saw the incident and immediately informed kalipada and others who immediately reached the place of occurrence. Kalipada tried to save his son Deben. He was unsuc-cessful. Both Kalipada and Deben sustained multiple injuries and died on the spot. According to prosecution complaint was lodged by Karpul at Police Station Tapan on November 12, 1983 which was received by the police Station at about 16. 45 hours. The same was sent to the Magistrate and received by the Chief Judicial Magistrate, Balurghat on November 14, 1983. Police arrested baidyanath and others being the appellants abovenamed. They pleaded not guilty of the offence and faced trial. 1. 2 Prosecution produced altogether nineteen witnesses including the family members of Kalipada and Deben. The appellants did not produce any defence witness. They were, however, examined by the magistrate under Section 313 of the Code of criminal Procedure. During such examination they deposed that incident started in the noon in connection with the harvesting of paddy. Baidyanath cultivated the paddy whereas the other group being Kalipada and others came to forcibly harvest the same. Baidyanath Group resisted. As a result there was a scuffle between them. The appellants also sustained injury. The appellants also admitted that they were constrained to beat kalipada Group to save their life and thereafter they flee from the place after "receipt of hurt". They, however, denied occurrence of any subsequent incident in the evening as alleged by the prosecution. The learned judge held all the accused/appellants guilty of the offence, convicted them under Section 302 read with Section 34 of the Indian penal Code and sentenced them to suffer rigorous imprisonment for life coupled with a fine of Rs. 500. 00 each and in default to suffer rigorous imprisonment for six months. Hence, this appeal by the appellant/convicts. One of the accused Lokenath was, however, acquitted from the charges.
(2.) CONTENTION OF THE APPELLANTS: 2. 1 Mr. Y. J. Dastoor learned counsel appearing for the appellants contended before us that the prosecution miserably failed to prove that there had been a second incident in the evening of November 11, 1983. First incident, however, was admitted by both sides. Both the groups took the land as a khas land which later on transpired as land belonging to Late A. B. A. Gani Khan chowdhury. There had been a free fight in between two groups. As a result both sides sustained injuries causing two casualties. Since there was a free fight until and unless the responsibility was fixed through unimpeachable evidence no one could be convicted under Section 302. Mr. Dastoor took us to the deposition of the prosecution witnesses as well as the deposition of the appellants/convicts in course of examination made under Section 313 of the Code of criminal Procedure to establish that there was no concrete evidence to implicate the appellants so that the Court could come to conclusion that they were responsible for the murder of Kalipada and Deben. He ultimately prayed for acquittal of the appellant/ convicts. 2. 2 In support of his contention Mr. Das cited the following decisions. :- (i) 1975, Volume - III, Supreme Court cases, Page 815 : (1975 Cri LJ 870) (Ram kumar Pandey v. State of Madhya Pradesh) (ii) 1975, Supreme Court Cases (Criminal), Page 601 : (1975 Cri LJ 1734) (Balaka singh and Ors. v. The State of Punjab) (iii) 1976, Volume - IV, Supreme Court cases, Page 355 : (1976 Cri LJ 1883) (Ishwar singh v. State of U. P.) (iv) All India Reporter, 1976, Supreme court, Page 2263 : (1976 Cri LJ 1736) (Lakshmi Singh and Ors. v. State of Bihar) (v) All India Reporter, 1976, Supreme court, Page 1924 : (1976 Cri LJ 1521) (Subhash and Anr. v. State of U. P.) (vi) All India Reporter, 1988, Supreme court, Page 1158 : (1988 Cri LJ 1154) (Awadhesh and Anr. v. State of Madhya pradesh) (vii) All India Reporter, 1980, Supreme court, Page 1873 : (1980 Cri LJ 1298) (Purshottam and Anr. v. State of Madhya pradesh) (viii) All India Reporter, 1994, Supreme court, Page 1539 : (1994 Cri LJ 1385) (Sri niwas v. Ram Bharosey and Ors.) (ix) 1994, Volume - V, Supreme Court cases, Page 188 : (1995 Cri LJ 457) (Meharaj singh v. State of U. P.)
(3.) CONTENTION OF THE PROSECUTION 3. 1 Mr. Tapan Dutta Gupta, learned counsel appearing for the prosecution while opposing the appeal contended that the trial was conducted after about four years of the incident. Hence, it was not possible for the witnesses to remember each and every details of the incident. Mere discrepancy in evidence per se did not vitiate the proceeding once the murder was proved through the available evidence. He also contended that the evidence of the eye witnesses coupled with medical evidence that came out in evidence conclusively proved that the victims were murdered. The involvement of the appellants were also proved through eye witnesses. Hence, the learned Judge rightly held the appellants guilty of the offence and sentenced them appropriately. He prayed for dismissal of the appeal. 3. 2 In support of his contention Mr. Dutta gupta cited the following decision :- (i) 1993, Criminal Law Journal, Page 1656 : (1993 AIR SCW 1656) (Jarnail Singh and Anr. v. State of Haryana) (ii) 1996 All India Reporter, Supreme court, Page 3265 : (1996 Cri LJ 2528) (Ram sanjiwan Singh and Ors. v. State of Bihar) (iii) 1997, All India Reporter, Supreme court, Page 364 : (1996 Cri LJ 4438) (Darshan Singh and Ors. v. State of Haryana) (iv) 2000, Cal Criminal Law Reporter (Supreme Court)Page 469 : (2000 Cri LJ 4047) (State of West Bengal v. Mir Mohammad omar and Ors.) (v) 2001, Volume - IV, All India Criminal law Reporter, Page 361: (2001 Cri LJ 4708) (Munshi Prasad and Ors. v. State of Bihar) (vi) 2002, Criminal Law Journal, Page 581 : (AIR 2002 SC 291) Brij Lal v. State of haryana) (vii) 2003 Cri LJ Page 2011 : (AIR 2003 sc 1243) (State of U. P. v. Rasid and Ors.);

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