Girish Chandra Gupta, J. - (1.) This appeal is directed against a judgment and order dated 9th September 1985 passed by the learned sessions Judge, Bankura, in Sessions Trial No.1 of March 1985 arising out of Sessions Case No.7 of 1984 convicting the appellant Mrityunjoy Mistra and acquitting the accused Fata Dhang and Krishna Biswas of the charge under section 302 of the Indian Penal Code. The convict Mrityunjoy was sentenced to imprisonment for life.
(2.) The facts and circumstances of the case briefly stated are as follows: On 5th June 1982 in the evening, the deceased Nripen Khan accompanied by his brother Dilip Khan and many others had been to Huchukdanga, a village in the district of Bankura, to watch a theatrical performance commonly known as Jatra. At about 10.50 P.M., the de facto complainant Dilip hearing the cry of his elder brother Nripen rushed near the house of Guinram Ghosh and found his brother Nripen lying in a pool of blood. Upon interrogation, the victim disclosed that Mrityunjoy Mishra and three unknown persons due to political rivalry dealt the blows with sharp cutting weapons. His three cell torch and the HMT 'Sona' Wrist Watch had also been snatched away. The victim was taken to Ramchandrapur for treatment. From there he was shifted to Mezia Hospital. The written complaint was lodged at 03.05 hrs. on 6th June 1982 that is to say within four hours approximately. The victim succumbed to his injury in the Mezia Primary Health Center on 6th June 1982. The conviction is based on the dying declaration of the victim. There is no eyewitness. The accused/appellant Mrityunjoy absconded for a considerable period of time and was ultimately arrested on the basis of a secret information on 15th October 1982.
(3.) On 16th June 1982 Shankar Patra who was eventually, examined as P.W.5 made a statement under section 164 of the Code of Crimitial Procedure which has been marked exbt.2 and the same was recorded by the judicial Magistrate (P.W.15). The said statement (shorn of details) when translated into English would read as follows: ".......... then Mrityunjoy came and told "Nripen you are there". Mrityunjoy caught hold of Nripen and dragged him. The former was accompanied with others. Fata Dhang caught hold of me. I however escaped after forcibly freeing myself. On my way to the Pandal I told many persons pointing my finger the direction which Mrityunjoy had taken Nripen. I had lost the power to speak. Everyone ran. I also followed them. Nripen was lying behind the house of Sadhu Dutta near a bamboo clump and was shouting. His brother Dilip Khan was sitting by his side. Nripen was telling Mrityunjoy had assaulted him. He was asking for water which was provided by Tarapada. Many persons ran. Nripen was shifted to the hospital.";