BIJOY KUMAR BASU Vs. KALIPADA GHOSH

JUDGEMENT

(1.) This revisional applicator is directed against the order of Sri A.N. Lahiri, Additional Sessions Judge, Burdwan, acquitting the eight accused opposite parties of charges under Sections 304/34, 304/109 and 323 Indian Penal Code, 1860 on the unanimous verdict of the jury finding them not guilty.

(2.) The prosecution case was briefly as follows: Rakhal Ghosh of Bhaturia, Purbasthali Police Station, sold eight bamboos from a bamboo clump in his village to Ranjit Ghosh of Bandhupur, on 28/3/1953. The bamboo clump in question belonged to Khenta Dasi, widow of Ramkrishna Ghosh, nephew of Rakhal Ghosh living in the same homestead as Rakhal Ghosh. The bamboo clump was situated just to the west of a plot of waste land of the homestead of accused Dharma Ghosh alias Sital, the plot of waste, land also belonging to accused Dharma Ghosh. The bamboo clump was pointed out to Ranjit Ghosh by Rakhal Ghosh about 11-30 a. m. or 12 noon and Ranjit cut eight bamboos from the clump. Leaving the bamboos there, Ranjit went to the hattala (Market-place) for his midday meal and for obtaining a cart for carrying the bamboos. He returned to the bamboo clump with a cart about 3-30 or 4-00 p. m. He noticed Dharma alias Sital Ghosh taking away two of the cut bamboos and protested, but Dharma alias Sital claimed that the two bamboos had been cut from his land. Ranjit went to the house of Rakhal Ghosh and informed him. Rakhal Ghosh's house was situated to the east of the District Board road east of the house of accused Dharma, being about 300 cubits from the bamboo clump. Rakhal Ghosh proceeded to the bamboo clump, with one of his nephews named Banamali. Three other nephews or his, named Kanai, Sridam and Murari, followed them to the clump. They found Dharma alias Sital Ghosh reinforced by the other, seven accused, viz., Kalipada Ghosh s/o Ramchandra Ghosh, Kalipada Ghosh s/o Annada. Ghosh, Bankim Pal, Ajit Ghosh, Hondo Ghosh, Bhakta Bauri and Batu Bauri. They were all armed with lathis, Hondol having a pick-axe instead of a lathi. Rakhal Ghosh's nephews picked up bamboo branches (Kanchi). There was an altercation between the parties and the parties were about to come to blows. But on hearing the row, some villagers came and intervened and induced the parties to agree to the proposal that the boundaries of the plots belonging to Dharma alias Sital and Rakhal or his niece-in-law would be surveyed on the following day with the help of an amin if available and thus the title to the disputed clump of bamboos would be settled. Rakhal Ghosh and his nephews started homewards along a pathway or lane going east towards the District Board Road across which they had to go to reach their house. On the way the accused party suddenly attacked them; Banamali Ghosh and Sridam Ghosh were severely assaulted with lathies and other weapons and fell down with bleeding injuries on the heads and other parts of the body; they were assaulted according to the prosecution case by Dharma alias Sital, Ajit Ghosh, Hondol Ghosh, Bhakta Bauri and Batu Bauri, while the other three accused Kalipada s/o Ramchandra, Kalipada s/o Annada and Bankim encouraged and instigated them by shouting. Kanai and Murari were also assaulted, but their injuries were not severe. Rakhal Ghosh who bad stayed behind came up on hearing the row and as soon as he arrived at the spot the assailants took to their heels, and Rakhal did not sustain any injury. Banamali and Sridam had fallen near the junction of the District Board Road and the lane or pathway from the clump; they were carried home and a doctor was called from Dogachhi to attend them. Information was lodged at Purbasthali Police Station at 10-40 P.M. on the same day by a co-villager Bijay Kumar Basu, the thana house being 6 miles from the village. Banamali died on the next day 27-3-1953. Under the Dogachhi doctor's advice, Sridam was removed to Dogachhia hospital and thence to Fraser Hospital, Burdwan, but he died on 30-3-1953. The police after investigation submitted charge-sheet against the eight accused and in due course the accused were committed for trial.

(3.) The accused themselves when questioned under Section 342, Criminal P. C. by the learned Sessions Judge merely pleaded their innocence, Hondol Ghosh stated in addition that he was very ill at the time, having had an attack of cholera and Bhakta Bauri stated that he did not go to the place at all. On behalf of the accused a further defence was suggested, as indicated by three questions put in cross-examination to P. W. 1 Bijay Kumar Basu, viz.