NANDA PATIHAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Charged with anffence under section 3-2 I.P.C. but actually convicted for an offence under section 323 P.C. and sentenced to simple imprisonment for six months and a fine of Rs.500/-, in default to suffer S.I. for three months, in Sessions trial No. 2(6) of 1978 by the 2nd Court of Additional Sessions Judge, Bankura, the convict has come up in appeal. The learned Additional Sessions Judge has further directed that if the fine be realised the same shall be, paid to the son of the deceased. The outline of the prosecution case may be briefly given as follows :-

(2.) On 20th Pous 1382 B.S. around 9/10 P.M. in the night Chandra Kanta Mondal (P.W. 11), a resident of village Mosinapur was returning to his house. Near the house of his neighbour Gopal Midday (P. W. 6) Chandra Kanta noticed Bibhuti Dighar alias Neul carrying some bundles of paddy and a bucket. He asked Neul as to where from he got the bundles of paddy and did not get any reply. Suspecting theft of paddy he roused from sleep neighbours Biswanath Middha (p.W.4) and Gopal Middha (P.W. 6) P.W. 4 and 6 roused from sleep Khudiram Das (P.W. 5). All of them decided to inform the accused Nanda Pratihar who was then the Gram Adhakshya of Mosinapur. P.Ws.4 and 6 went to the accused and reported the matter to him. After receiving the information the accused came to the spot taking with him Saktipada Das {P.W. 10) and Parbati Das (P.W. l2LReaching the house of Neur the accused enquired of him if he hall stolen any paddy and the accused is alleged to have replied in negative. It is alleged that accused began to assault him with a lathi. It is reported that P. W. 2 Subhas Dighar a child witness and the son of the deceased began to cry seeing his father assaulted and he himself was also beaten. It is reported that when Saktipada Dhara (P.W. 3) tried to intervene he was again assaulted by - the accused with a lathi. After Neur was severely assaulted the accused with the help of P.W. 10 Saktipada and P.W! 12 Parbati carried Neur inside his room and left him there. In the morning following Kanailal Digar (P.W. 1) and Subal (P.W.21) on their way to field cam, across Subhas Digar who informed them that as a result of assault by accused hi. fat4fr had died. P.W. 1 and 21 reached the room of the deceased and found him lying dead with multiple injuries on his person and many people arrived there. Then P.W. 1 and 21 went to Siromonipur Police outpost and lodged information which was entered in G.D. by P.W. 22 as per Ext. 3. P.Ws. 1 and 21 were advised to report the matter to Kotolpur P.S. and accordingly P.Ws. 1 and 21 went to Kotulpur P.S. and lodged information which was recorded by P.W. 2S as case No.3 dated 6.1.76 started. After investigation and commitment the sessions trial was held with the result as indicated above. It is worthy of note that Police submitted a charge-sheet against the accused under section 324 I.P.C. while the Jearned trial Judge framed a charge under section 302 I.P.C.

(3.) Mr. Ashoke Ganguly, learned advocate appearing for the appellant assailed the findings of fact arrived at by the learned Additional Sessions Judge. He contends that the prosecution case is improbable and unbelievable, the witnesses were interested and politically motivated and there were obvious discrepancies in their testimony on important points which should have led the learned court below to hold that the prosecution case was not proved beyond reasonable doubt. He contends that in arriving at a conclusion that the appellant had committed an offence under section 323 I.P.C. and along with him some others assaulted the deceased, the Court below made out a case which the prosecution itself did not spell out. He contends that the finding of guilt and the judgment of conviction are liable to be set aside.