ANATH BANDHU & ANR. Vs. THE STATE

JUDGEMENT

(1.) Upon their conviction in Sessions trial No. 1 of March, 1980 for offences under Sec. 302/34 and 12B Penal Code and imposition of sentence of life imprisonment for the first offence anti R.I. for 10 years for the second offence by the Additional Sessions Judge, 3rd Court, Murshidabad, the two appellants have filed the present appeal. Since the filing of the appeal the appellants are in jail. Along with the appellants one Jagannath Ghosh was charged under Sec. 302 read with Sec. 34 Penal Code and under Sec. 120B Penal Code ; he has been acquitted. The appellants themselves were also charged under Sec. 364 Penal Code but they have been found not guilty of the said charge and an order of acquittal has been recorded on that count. The prosecution case may be n narrated as follows:-

(2.) On 4.8.76 at 11.40 hrs a decomposed skull of a man was found placed on a torn yellow full sleeve terelyne shirt in mouja Kharjuna under P.S. Burdwan and seized by police under Ext. 5A. Only two hours prior thereto at 9.45 hrs. on 4.8.76 an FIR was lodged with the aforesaid thana by P.W. 1 Dhiren Pal. In the said FIR on which Burwan P.S Case No. 3 dated 147.76 was started, the informant a resident of village Kurcha within the local limits of the above thana alleged that on 14.7.76 Wednesday his brother Bejoy Pal left his dwelling house in the said village in the company of Anath Das (One of the appellants). Anath had given out that to get his maternal uncle released from bazat through the good offices of Bejoy's brother in-law Bejoy's presence at Kandi was urgently required. Bejoy initially expressed ins reluctance to go as paddy seeds were to be sown, but Anatb helped Bejoy in the matter of sowing of seeds and persuaded Bejoy to accede to his request Bejoy and Anath left for Kandi at 8.30 A.M. taking some scanty refreshments in the house of Bejoy. Even after Sunday 18.7.76 Bejoy did not come buck His friends and relations made anxious enquiries and searches; and came to know that Bejoy was wearing one dhoti with violet border and a full sleeve terylene shirt of light yellow colour while he left his house. It was ascertained that he boarded a bus for Kandi at Sonai Bus stand to get down at Nima Dak Bungalow for the purpose of taking refreshments in the shop of Nakfura ; and they were seen there by Gadai P.W. 10. It was alleged that Dhiren the other appellant was a relation of Anath, reached the spot and the three, namely, Dhiren, Anath and Bejoy, started for Kandi by bus. It was alleged that they were seen in the bus by Narayan Ghosh (P.W. 8) and in answer to his question Anath and Dhiren disclosed that they were going to Kandi with Bejoy in connection with some business of theirs. After reaching Kandi, Bejoy had some talks with his sister':- husband Sanjoy Ghosh (P.W. 14) when Dhiren and Anath were waiting under a tree standing a little away. From there they proceeded towards Kandi Court. Bejoy thereafter became untraceable. At about 11 or 12 O'clock on 3.8.76 the informant learnt from some people that skull of a dead man was lying by the side of a canal in village Kharjuna. The informant went to the spot and saw the decomposed skull, the terylene shirt and dhoti of the description earlier mentioned. He alleged that Jagannath Ghosh, the acquitted accused had threatened Bejoy, so the informant believed that Anath and Dhiren pursuant to a conspiracy with Jagannatb and Balai Ghosh abducted Bejoy on a false pretext to facilitate his murder. On the basis of the above information investigation started and subsequently on the basis of order of commitment the Sessions trial aforesaid was held. In the trial as many as 19 witnesses were examined on behalf of the prosecution.

(3.) Mr. Balai Ch. Roy, the learned advocate assisted by Mr. Dostoor appearing on behalf of the appellants, vigorously challenges the finding of guilt arrived at by the learned Sessions Judge and the judgment of conviction and sentence. Mr Roy contends that guilt of the appellants was not proved beyond reasonable doubt and the learned Sessions Judge was wrongly influenced by so called confessions made by the accused under police pressure which were retracted at the time of trial Mr. Roy argues that on a close and careful scrutiny of the evidence the learned trial Judge should have arrived at a finding of not guilty, Mr. Samir Chatterjee, the learned advocate representing the State Government respondent makes valiant efforts to support the judgment of conviction.