STATE OF WEST BENGAL Vs. ALEXIUS TIRKEY

JUDGEMENT

(1.) This appeal preferred by the State is directed against the judgment and order of acquittal passed by the learned Sessions Judge dated 28th July, 2005 in Sessions Case No.24 of 2003 thereby acquitting the respondent/ accused from the charges under sections 302 and 449 of the Indian Penal Code (in short IPC). Being aggrieved by, and dissatisfied with, the order of acquittal the State has moved this Court in this appeal.

(2.) The prosecution story, in a nutshell, is that Smt. Jaseenta Minj (P.W.5) was living with her elder sister Smt. Josani Minj and brother-in-law Shri Lachu Tigga at Louki Nallah No.3. P.W. 5 was married with one Mr. John and thereafter she had second marriage with one Robert Lakra. When Robert Lakra left her at Diglipur, she came to her elder sister's house and was staying at Louki Nallah. Her elder sister's daughter Kumari Ajita Tigga (P.W.6) and one Asan Sai (deceased) were also staying at Louki Nallah for the last 5/6 years from the date of incident About 2 l/2 years back from incident, Lahku Majhi and her elder sister brought a man named Alexius Tirkey alias Bakchandu (respondent) for cultivation and he was staying and fooding with them The respondent stayed in their house for about 5/6 months and at that time her elder sister disclosed her intention to give marriage of P.W.5 with the respondent Subsequently, her elder sister P.W.6 and Asan Sai denied to make marriage negotiation of P.W.5 with the respondent/accused Sometimes thereafter Asan Sai started to work in a stone quarry at Korang Nallah and began to stay there in some Bengali's house P.W.5 sometimes used to go to him and the accused/respondent also used to come to see P.W.5 and others with foods On 21st April, 2003 at about 8/9 hours the respondent came to their house and asked P.W.5 whether she will marry him or not Asan Sai and elder sister of P.W.5, who were present there denied to give marriage of P.W.5 with respondent Alexius The respondent thereafter returned to the village at about 2 00 p m The elder sister of P.W.5 and brother-in-law went to Betapur P.W.5, P.W.6 and the deceased Asan Sai remained in their house at Louki Nallah At about 7/7 30 p m the respondent/accused came there with shouting saying that he would kill Asan Sai and saying this he came to the door of the hut of the elder sister of P.W.5 and entered into the hut P.W.5 and P.W.6 were sleepless and the old man Asan Sai was sleeping on the floor on a tarpaulin P.W.5 saw a torch in the left hand of respondent Alexius and a thick stick (danda balli) in his right hand and he was wearing only a towel P.W.5 and P.W.6 out of fear went out of the hut through back door and concealed themselves behind a bush One earthen lamp was burning in the hut and in the light of the said lamp P.W.5 saw that the respondent/accused was beating on the head of Asan Sai with thick stick and was saying that Asan Sai was not agreeable to allow him to marry P.W.5, Jaseenta Minj There was no sound from the mouth of Asan Sai and staying there for some time, the respondent left the hut When P.W.5 was confident that respondent had left the hut, she and her elder sister's daughter P.W.6 came to the hut and found that deceased Asan Sai was lymg on the tarpaulin in the midst of profuse bleeding P.W.5 shook the hand of Asan Sai and found that he was already dead P.W.5 lodged First Information Report (in short FIR) at Police Booth of Billiground on 22 4 203 at 7 15 a m On the basis of such FIR (Ext 9) Rangat P S Case No 150 dated 22 4 2003 under section 302 IPC was started against the respondent/accused After completing investigation the Investigating Officer (10) submitted chargesheet under sections 302/449 IPC against the accused After commitment of the case to the Court of Sessions which was registered as Sessions Case No 24 of 2003 m the trial the learned Sessions Judge, A & N Islands by order dated 28th July, 2005 acquitted the respondent/accused from the charges and he was set at liberty

(3.) Mr S K Mandal, learned Public Prosecutor appearing for the State submitted that the learned Sessions Judge has eared both in law and in fact Learned Sessions Judge proceeded in a wrong angle by observing that prosecution case depends upon circumstantial evidence, whereas, the prosecution case is based on direct evidence of two eye-witnesses, namely, P.W.5 and P.W.6 and other corroborating evidence including the evidence of P.W.2, P.W.3, the evidence of Post-mortem Surgeon, P.W.10, the 10 (P.W.12) The learned Sessions Judge disbelieved the eye-witnesses without any reason and made wrong appreciation of evidence by observing that the prosecution story is unbelievable He disbelieved the witnesses as they stated that after the incident the accused left the place with singing and, the learned Judge disbelieved the prosecution story by observing that after murder an accused cannot sing