DHIRENDRA NATH Vs. STATE

JUDGEMENT

(1.) This Rule is directed against the conviction of the petitioner under Section 325, Penal Code, and a sentence of two years' rigorous imprisonment passed on him at a trial held by Sri P. N. Lahiry, Assistant Sessions Judge, Alipore, with the aid of a common jury. An appeal to the Sessions Judge was dismissed.

(2.) The incident which led to the prosecution in this case was a quarrel between to brothers. The petitioner, Dhirendra Nath Bera and one Fakir Bera are brothers, living separately in contiguous villages. Each village has, however, an ancestral homestead. There is a homestead in village Bechuabati, in one half of which the petitioner has his residence while the other half is possessed by Fakir Bera who grows vegetables on it. Similarly, there is a homestead in village Alamnagar, in one half of which Fakir Bera has his residence while the other half is possessed by the petitioner. The petitioner has a son named Prafulla and Fakir Bera had two sons, named Pran Krishna and Siba Prasad. It is alleged that on the 4th August, 1950, Siba Prasad reported to his father that he had detected the petitioner arranging some 'pan' leaves which he had obviously pilfered from their 'boroz'. On receipt of that information, Fakir Bera proceeded, to the spot, engaged the petitioner in an argument and ultimately slapped on the face. Not content with administering this punishment, Fakir Bera called a 'salish' in the evening at which the petitioner at first denied having pilfered any 'pan' leaves but ultimately admitted the offence and begged his brother's pardon which was readily granted. The matter might have ended there, but according to the prosecution it did not. It is alleged that the insult and humiliation to which the petitioner was subjected continued to rankle in his mind and next day, at about noon, when Pran Krishna was returning from the field, the petitioner engaged him in a quarrel and would have pierced him with a 'chowki' if he had not been restrained by the womenfolk in his house and certain other co-villagers. Later; in the afternoon, Siba Prasad went to the field to do some transplantation work and the petitioner, it is alleged, engaged him also in a quarrel. Siba Prasad, it is further alleged, hurled back the insults which the petitioner threw at him and instead of fleeing from the spot, as Pran Krishna had done, began to advance and the two came to grips near a 'gola' belonging to Kunja. There, it is alleged, the petitioner picked up a stout club of Babla wood and dealt a blow with it on the head of Siva Prosad with the result that he collapsed instantly, bleeding profusely from his mouth and nostrils. A village doctor was called in but he pronounced the case to be too serious for his limited skill and advised removal of the patient to the town hospital. The wounded man was removed to the hospital at Budge Budge where he died the next morning without regaining consciousness. The post-mortem examination revealed that the frontal bone of his head was fractured from side to side and, according, to the medical opinion, death was due to the injury suffered on the head. About three hours after the death of Siba Prosad, his younger brother Pran Krishna lodged a first information, report at the police station.

(3.) On the above facts, proceedings were commenced against the petitioner on a charge under Section 304, Penal Code. His defence before the Committing Magistrate appears to have been that it was Siba Prosad who was the aggressor, and it was he and his men who had chased the petitioner and his son Profulla and in the course of the affray which ensued, some unknown person struck the blow which had killed Siba Prosad. Before the Sessions Court this version was slightly varied or clarified and the defence made the positive case that the blow was actually struck by Profulla.