MOSEB KAKA CHOWDHRY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the High Court of Calcutta confirming the conviction and sentence of each of the two appellants before us, by the Sessions Judge of Murshidabad. The appellants were tried on a charge under S. 302/34, I.P.C. by the Sessions Judge with a jury. The jury returned an unanimous verdict of guilty against each under the first part of S. 304 read with S. 34, I.P.C. The learned Jude accepted the verdict and convicted them accordingly and sentenced each of the appellants to rigorous imprisonment for ten years.

(2.) In order to appreciate the points raised before us, it is desirable to give a brief account of the prosecution case. The two appellants jointly made a murderous assault on one Saurindra Gopal Roy at about 6.30 p.m. on 3-11-1951. There was, owing to litigation, previous enmity between the deceased and the appellants. All of them belonged to a village called Mirzapur which in within the police station Beldanga, district Murshidabad. The deceased along with two friends of his, of the same village examined as P. W. 1 and 2, attended a foot-ball match that evening at Beldanga. The match was over by 5 p.m. and all the three of them, were returning together to their village. In the course of the return they were passing at about 6.30 p.m. through a field, nearly half a mile away from the village. The two appellants each having a lathi and a Hashua (sickle) in his hand, emerged from a bush nearby and rushed towards the deceased and his companions. P. W. 1 was first struck with a lathi and thereupon both P. Ws. 1 and 2 moved away to a distance. The appellants assaulted the deceased and inflicted on him a number of serious injuries. The two companions of the deceased, P.Ws. 1 and 2 ran towards the village and shouted for help whereupon a number of people from the village came and collected at the spot. Information was also carried to the son as well as to the brother of the deceased. They also came on the scene. The brother, by name Radhashyam, proceeded at once to the Beldanga police Station and lodged the first information report at about 7.30 p.m. The police officer came to the scene and recorded a statement from the deceased who was then still alive. He was thereafter taken to the hospital at Beldanga. At the hospital the Medical Officer also took a statement from him (Ex. 4) He died some time thereafter.

(3.) P. Ws. 1 and 2, the companions of the deceased, were the only eye-witnesses to the murderous assault. The prosecution relied also on certain statements said to have been made by the deceased after the assault. The deceased is said to have stated to P. W. 7 one of the villagers who first came on the scene, after hearing the shouts of P. Ws. 1 and 2 that the two appellants were his assailants. A little later, when his son and his brother, P. W. 3 came there, he is also said to have stated to P. W. 3 that the two appellants were the assailants. Accordingly the first information report gave the names of the two appellants as the assailants. Similar statements are said to have been made by the deceased to the police officer when he came on the spot and later to the medical officer when he was taken to the hospital. The evidence, therefore, in support of the prosecution case was mainly, that of the two eye-witnesses, P. Ws. 1 and 2 and of the four dying declaration, two of them oral and two written. There was considerable scope for criticism about the evidence of the two eye-witnesses. The evidence relating to the dying declarations was also open to attack in view of the nature of the injuries inflicted on the deceased. These included incised wounds on the occipital region and an incised wound in the brain from out of which a piece of metal was removed on dissection. This, as was urged, indicated the likelihood of the deceased having lost his consciousness almost immediately and hence the improbability of any statements by the deceased. But the medical evidence on this point was indecisive. There can be no doubt however that the reliability of the prosecution evidence was open to serious challenge in many respects.