NITYA SEN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) A petition for special leave to appeal to this Court was filed by Baidyanath Ghosh, Dharam Ghosh and Nitya Sen against the appellate judgment of the Calcutta High Court dated March 3, 1975, upholding their conviction for an offence under Section 302/34, I. P. C. and the sentence of rigorous imprisonment for life. When the matter came up before this Court on December 13, 1976, special leave was granted only to the appellant Nitya Sen and the petition, in so far as it related to Baidyanath Ghosh and Dharam Ghosh, was dismissed. We have therefore heard arguments of the counsel for the appellant.

(2.) It is not in dispute that Chintamoni Ghosh and appellant Nitya Sen belonged to the same village. Chintamoni Ghosh was serving in the Thermal Power Plant at Tribeni, in the Hoogly district. He used to come to his village Dadupur (within the jurisdiction of police station Nakaspara) on every Saturday, to meet his mother, wife and brothers. It is alleged that when he came to his house on November 13, 1971, which was a Saturday, at about 8-30 p.m. he knocked at the "khirki" of his house. It was opened by his brothers Nabjiban Ghosh P. W. 1 and Ratan Ghosh P. W. 2. They saw that their brother Chitamoni Ghosh was being assaulted by Nitya Sen and others and was being dragged towards a bamboo grove in the east, where they saw him being struck with "hensua", "dao" and daggers. When Nabjiban Ghosh and Ratan Ghosh tried to go to the help of their brother Chintamoni Ghosh, it is alleged that appellant Nitya Sen, who was standing with a pistol in his hand, threatened them. It has been alleged further that the accused dealt a number of blows on the person of Chintamoni Ghosh after dragging him towards the bamboo grove, at a distance of about 10 or 15 cubits from the "Khirki" of his house. and left him there. Thereafter appellant Nitya Sen is said to have fired his pistol once, and the assailants left the place shouting that they had killed the "police agent" and offering "red salute to Naxalbari." Nabjiban Ghosh P. W. 1 and Ratan Ghosh P. W. 2 immediately rushed to the place where Chintamoni Ghosh was lying, and found that he had died. They brought the dead body to the verandah of their house. Nabjiban Ghosh P. W. 1 left for police station Nakaspara, on foot, which was at a distance of some 12 Km. and lodged the first information report (Ex. 1/2) there at about 3.45 a.m. The entire incident, including the names of the three accused Baidyanath Ghosh, Dharam Ghosh and appellant Nitya Sen was mentioned in the report, along with the names of the two eye-witnesses Nabjiban Ghosh P. W. 1 and Ratan Ghosh P. W. 2. Dr. R. N. Chatterji P. W. 16 performed the post-mortem examination on the body of Chintamoni Ghosh. He found eleven incised and other injuries including the following three injuries which were jointly and severally sufficient to cause the death of the deceased and were all ante mortem,-

(3.) All the accused were found absconding and could be arrested only after September 18, 1972 when proclamations were issued to compel their surrender. They were committed to the Court of Session and were convicted and sentenced by the Additional Sessions Judge of Madin of the offence under Section 302/ 34. I. P. C. and sentenced to imprisonment for life as aforesaid.