Joymalya Bagchi, J. - (1.) The appeal is directed against the judgment and order dated 15.04.2008 and 16.04.2008 passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Paschim Medinipur in Sessions Trial XVI of April, 2006 arising out of G.R. Cash No. 529 of 2004 convicting the appellants for commission of offence punishable under sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and pay fine of Rs.5000/- each in default to suffer simple imprisonment for one month each with a direction to pay compensation of Rs. 75,000/- each to the family of the victim which is to be received by his brother Chaitan Mahato within two months from the date of order.
(2.) Prosecution case as alleged against the appellants and one Pintu Mahato is to the effect that one Ram Saran Ghosh (P.W. 13) had advanced money, fertilisers and potato seeds for the purpose of harvesting potato in the field of the appellant no. 1 on condition that the latter would sale the potatoes to him at a prevailing price. Appellant no. 1, however, committed breach of his promise and was seeking to sell the potatoes to one Pintu Mahato, a co-accused. Over this issue, there was a salish in the locality in the afternoon of 23.03.2004 where the appellants agreed were directed not to remove the potatoes from their field in the night and the matter was adjourned for further discussion on the next date. In the night at 1.30a.m. the appellant no. 1 brought a vehicle bearing no. WB 33/3339 to remove the potatoes. Hearing this Ram Saran Ghosh along with others including the victim Kalipada Mahato went to the field of appellant no. 1. They found the appellant was armed with axe, appellant no. 2 was armed with 'tangi' and Pintu, son of appellant no. 1 was armed with 'gupti'. AN altercation ensued between appellant no. 1 and the victim, Kalipada. Appellants no. 1 and 2 held the victim in the course of the altercation and Pintu drove his gupti into his chest. As a result the victim fell on the adjoining land by one Panchu Mahato and expired. Over this issue written complaint was lodged by Chaitan Mahato, P.W. 1, resulting in registration of FIR No. 23 of 2004 dated 21.03.2004 under Sections 341/302/34 of the Indian Penal Code against the appellants, one Pintu Mahato and others. In conclusion of investigation charge-sheet was filed and the case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Fast Track, 2nd Court, Paschim Medinipur, for trial and disposal. The case of Pintu Mahato, a juvenile in conflict with law, was segregated and sent to the Juvenile Justice Board while charges were framed against the appellants and others under Sections 149/302 of the Indian Penal Code. Accused persons pleaded not guilty and claimed to be tried. In the course of trial prosecution examined 17 witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication. In conclusion of trial, learned trial Judge by judgement and order dated 15.04.2008 and 16.04.2008 convicted and sentenced the appellants, as aforesaid. The other accused persons, however, were acquitted of the charges levelled against them.
(3.) Mr. Bakshi for the appellants argued that the prosecution has not led any evidence to the motive of the crime. No documentary evidence was adduced to support the prosecution case that P.W.13 had lent money and other materials to appellant no.1 for potato cultivation. Hence, appellant no.1 was entitled to sell his produce to anyone he chose and neither the prosecution witnesses nor the victim had justification to intervene in the matter. He further submitted that appellants had no enmity with the victim Kalipada and it is absurd that they would have murdered Kalipada over the dispute. On the other hand, documents were placed in the course of trial to show that appellant no.1 had taken loan from other sources and the prosecution case of murdering Kalipada over the dispute of sale of potatoes to another person other than P.W.13 is not believable. P.W.s 1, 6, 7 to 9 are partisan witnesses as they admitted that they had taken loan from P.W.13. Hence, the trial court ought not to have accepted the version of such biased witnesses who were indebted to P.W.13. Alternatively, it was argued without prejudice to the aforesaid submissions that the incident occurred in the course of a scuffle and the appellants by merely holding the victim cannot be said to have shared the common intention to murder the victim. He relied on Ram Asrey vs. State of U.P., 1993 2 Crimes(SC) 339, in support of his contention.;