- (1.) Heard learned Senior Counsel for the appellants Mr. A.K. Kashyap assisted by Ms. Shristi Paul, Advocate and learned Additional Public Prosecutor Mr. Pankaj Kumar representing the State.
(2.) The present two appellants faced conviction for the charge under Section 302/34 of the Indian Penal Code and Sections 323 and 452 of the Indian Penal Code by the impugned judgment dated 19.02.1996 rendered in Sessions Case No. 163 of 1994 by the learned 1st Additional Sessions Judge, Dumka, though the two other accused persons out of ten who faced trial were convicted under Sections 452 and 323 of the Indian Penal Code, while rest six were held not guilty and acquitted of the charges. The learned court sentenced these two appellants to undergo imprisonment for life for the offence under Section 302 read with Section 34 of the IPC and rigorous imprisonment for one month each under Sections 323 and 452 of the Indian Penal Code and at the same time directed the sentences to run concurrently by the impugned order of sentence dated 19.02.1996. The other two convicts under Sections 323 and 452 of the IPC also faced similar punishment rigorous imprisonment for one month each but they are not before us.
(3.) The prosecution case is based on the fardbeyan of informant, Barin Kumar Rai (P.W.13), resident of village Maluti Shikaripara, P.S. Shikaripara, District Dumka recorded by Sub-Inspector Subodh Kumar Jaiswal, Officer-in-charge Shikaripara, police station at Maluti on 05.03.1994 at 11:00 A.M. The gist of the allegation is as under: Informant alleged that on the previous night 04.03.1994, he alongwith his elder brother Dhuttu @ Binay Kumar Rai and sister Archana Rai @ Chaina (P.W.7) were sleeping inside the room in their house. Dhuttu @ Binay Kumar Rai was sleeping on a cot while the informant and his sister were sleeping on the floor and a lantern was kept lit in the corner of the house. At around 10:00 P.M. some persons tried to force their door open and threatened that if they fail to open it, it would be broken. Informant's sister was on the verge of opening the door when due to their strong force the door came open. As soon as the door opened Manik Rai (appellant no.1) son of Late Saroj Kumar Rai armed with his chhura (knife) in his hand entered and caught hold of informant's sister Chaina (P.W.7) and took her out in the courtyard. In the courtyard Habu @ Sudeo Chakrabarty (appellant no.2) son of Late Bato Krishina Chakrabarty, Bishu Mukharjee son of Late Khudo Mukharjee and Subal Bagti son of Late Narayan Bagti of the same village were standing. No sooner Chaina was taken into the courtyard, Habu with a lathi, Bisu and Subal with fisticuffs and legs brought her down and thereafter Manik sat on her chest and pressed her neck. Then Manik came inside and pushed the informant out threatening to kill him if he raised a brawl. Thereafter Manik caught hold of his elder brother Dhuttu and brought him out of the courtyard. As soon as he was brought in the courtyard Habu assaulted him with lathi and Bisu and Subal assaulted him with their legs and brought him down. Thereafter Manik Rai sat over his chest and pressed his neck and assaulted on his head with a knife. After some time, when his brother stopped moving, these four accused persons went shouting and threatening the informant not to raise a brawl. Informant further alleged that when his brother was being assaulted, Manik Rai was saying that "you people have implicated us in a case of theft of fish and made us go to Dumka Jail, see we have come back". The informant stated that at the time of assault and thereafter he did not raise a brawl out of fear. After they went away, informant somehow picked up his sister Chaina from the courtyard and brought her inside and made her lie down. Since his brother Dhuttu was unconscious and drenched in blood, he could not pick him up and left him in the courtyard. He closed the door of the house and went to sleep. He further stated that one red coloured towel (gamcha) of those persons were left in the courtyard, which he had seen in the night itself. According to the informant he got up in the morning, he gave information of the incidence to Naro and Mukul of the village. Then at that time, his brother Dhuttu who was injured was still in an unconscious state lying in the courtyard. The condition of his sister Chaina was also serious. Informant further stated that his brother Dhuttu is aged about 65 years and his sister Chaina is aged about 60 years. He inscribed his left thumb impression on the fardbeyan in the presence of witnesses Madhusudan Chatterjee (P.W.12), Satya Narain Mukherjee (P.W.5) and Prasant Mukherjee (P.W.9).;