NEDO KAR Vs. STATE

JUDGEMENT

(1.) The appellants Nedo Kar alias Chunilal Kar. Nand Kishore Kar alias Gutkay and Haripada Ghose have been convicted under Section 364, Penal Code by Sri P. N. Lahiry, Sessions Judge, Burdwan and sentenced to suffer rigorous imprisonment for seven years each.

(2.) The Prosecution case briefly was as follows: The appellant Nedo and Gutkay are brothers living in the same house at Srirampore in Purbasthali Police Station. The appellant Haripada is a friend of theirs and so was the deceased Tehtul Das, also a resident of Srirampore. The three appellants and the deceased Tentul had a joint business in illicit liquor and they used to distil, consume and sell illicit liquor. Five or six days before the murder of Tentul there was a quarrel between Tentul and the appellants over the demand by Tentul of the price of the liquor which he had made and supplied to the appellants for sale, and which the appellants refused to pay. In the course of the altercation it is alleged that the appellants threatened to kill Tentul but at the intervention of common friends, namely, Bhagirath Das, brother of Tentul Das, and Dwijapada Sircar, another resident of Srirampore, the quarrel was patched up. The occurrence took place on Tuesday, 13-7-1954. That day at about 8 O'clock in the morning the three appellants called Tentul to attend the temple of Pora Matola at Nabadwip where the appellant Nedo wanted to offer puja accompanied by sacrifice of goats. The deceased Tentul accompanied them to Nabadwip which is situated at a distance of about 3 or 4 miles from Srirampore village. Tentul returned at noon with a quantity of sacrificial meat. At about 4.30 or 5 P.M. the appellants cameagain and called Tentul, saying that he must come and have his meal at the house of the appellants Nedo and Nanda Kishore, and Tentul went away with the appellants. Later in the afternoon and in the evening Tentul was found sitting with the appellants in different places of the village including a mango garden and a jute field belonging to the accused Nedo and Nanda, drinking liquor along with the appellants. As Tentul did not return home even by 10 O'clock at night, his wife Annabala Dasi became anxious and sent her brother-in-law Bhagirath Das to enquire about her husband. Bhagirath went to the house of the appellants Nedo and Nanda Kishore and they said that Tentul would soon return home. Tentul, however, did not return. Next morning, Annabala and Bhagirath, the wife and brother of the deceased, respectively, became more anxious and they informed many people in the village and searched for Tentul all over the village and the neighbourhood. They also sent information to Balai and Satkari, brothers of Annabala, living at Nabadwip. On Wednesday, in spite of search by various persons, Tentul or his body could not be found. On Thursday morning also the body could not be found and in the morning at 7.45 A.M. Lakshminarain, a distant nephew of the deceased, went to Purbasthali Police Station and gave an information which was recorded in the General Diary regarding the missing of Tentul, mentioning the fact that he had gone away with the appellants Nedo, Gutkay and Haripada. On the same day, that is, Thursday the 15th July 1954, in the afternoon the body was found weighted down with bricks and floating in the Buriganga river situated at about 4 miles east or south-east of Srirampore village. Accordingly, Lakshminarain went again to Purbasthali Police Station and lodged a first information report at 5.15 P.M. on the same day, 15th July, 1954, stating over again that the appellants Nedo, Nand Kishore and Haripada had called and taken away Tentul at about 5.15 P.M. on 13th July, 1954, on the plea that they wanted him to dine with them at Nedo's house and that Tentul had not returned and that his body had been found in the Buriganga river and they suspected that the accused had called Tentul for the purpose of murder and actually murdered him. The Police then took up investigation and in due course submitted a charge sheet against the three appellants under Section 364,. Penal Code and under Section 302, Penal Code. The learned Magistrate after the preliminary enquiry committed the appellants to the Court of Session in respect of the charge under Section 334, Penal Code only.

(3.) The appellants pleaded 'not guilty'. Nanda Kishore alias Ghutkay stated, in particular, that they had not invited Tentul and that he (Gutkay) had not met Bhagirath that evening. The other appellants merely pleaded 'not guilty' and made no definite statements. The defence generally was that Tentul might have met a violent death in some other way and that the case had not been proved against the appellants. The Jury, however, returned a unanimous verdict of 'guilty' in respect of the charge under Section 364, Penal Code against each of the three appellants, and the learned Judge accepting the verdict convicted and sentenced the appellants as described above.