STATE Vs. TEJKARAN MARWARI

JUDGEMENT

(1.) This is a reference by Mr. N.N. Sarkar, Assistant Sessions Judge, Birbhum, under Section 307 of the Code of Criminal Procedure in disagreement with the verdict of a jury.

(2.) The prosecution case was briefly as follows: Election to the Union Board at Singhi in Bolpur police-station was to take place on December 2, 1953, and election propaganda and election meetings were being held from about a month and a half before the date of election. On November 13, 1953, there was an election meeting held at Nimtala-Majhipara, a part of village Jahanabad. This meeting was presided over by Prodyot Kumar Mondal, Headmaster of a junior school at Singhi and Mafizuddin was the candidate in whose favour the meeting was held. Mafizuddin was a member of the Communist party. Tejkaran Marwan, accused No. 1 is a landlord of Jahanabad and occasionally he held his "katchery at Jahanabad. According to the prosecution case, just before the meeting was scheduled to be held which was at 5-30 p.m., Tejkaran Marwari with some of his officers came to the meeting and said that he would not allow an election meeting of the rival party to be held within his zemindary. Mofijuddin Korban and others, however, asserted that they would hold the meeting in spite of the protest of the landlord, and thereupon the landlord Tejkaran Marwari with his officers went away and did not thereafter try to interfere with the meeting. The meeting broke up at about 7 or 7-30 p.m. When the meeting broke up, some of the people who attended the meeting decided to go for canvassing to Jahanabad village because many people from Jahanabad had not attended the meeting. "When they were passing by a tamarind tree near the zamindar's hatchary ghar, it is said, six persons including the two accused Tejkaran Marwari and Md. Azad suddenly came out from bush near the tamarind tree and attacked the party. Korban was in front of the party being 20 or 30 cubits ahead of the others. Tejkaran Marwari gave an order and Md. Azad struck him with a lathi, so that Korban Sheik fell down.

(3.) Thereafter under the order of accused No. 1, Korban Sk. was dragged away to the katchary. Mafijuddin, Newaj Ali and others who were in the party of Korban Ali were afraid because of the sudden attack made on them and they ran away. In the early morning next day Mafizuddin started for the thana and an ejahar was lodged at the Bolpur police-station at 6-30 a.m. on November 14, 1953. The Assistant Sub-Inspector was the first to arrive at the locality and he did so at 3 p.m. that day. He found the dead body of Korban Sk. in a house described as the katchary house of the accused Tejkaran Marwari, but the house was found deserted that time except for a wooden chouki and a packet of cigarette. Tejkaran Marwari, Md. Azad, Bhairab Majhi, gomosta of Tejkaran Marwari, were, however, found in a neighbouring house belonging to one Sindhubala Dassi, and they were arrested from there by the police. The police after investigation submitted charge-sheets against Tejkaran Marwari, Md. Azad and others. Bhairab, the officer of the landlord, died before the charge-sheet was submitted. The other accused against whom charge-sheet was submitted were absconding. Accordingly, Tejkaran Marwari and Md. Azad were placed on trial. Both the accused pleaded not guilty. Tejkaran Marwari said that he did not have his katchary ghar in the house in which the dead body of Korban Sk. had been found and he said that he knew nothing about the occurrence. Md. Azad also denied that he had anything to do with the occurrence. Against the two accused a common charge under Section 147 of the Indian Penal Code was framed, namely, for rioting along with other persons with the common object of assaulting Korban Sk. There was a charge under Section 323 of the Indian Penal Code against Md. Azad for voluntarily causing hurt to Korban Sk. and under Section 323 read with Section 109 of the Indian Penal Code against Tejkaran Marwari for abetment of such offence. There was a common charge under Section 304/ 34 of the Indian Penal Code against both the accused for culpable homicide not amounting to murder by causing the death of Korban Sk. in the katchary ghar.