LAKSHMAN DEBNATH Vs. STATE OF W B

JUDGEMENT

(1.) This appeal is directed against the judgment date 28-6-85 passed by the learned Additional. Sessions Judge, Midnapore, in Sessions Trial No.1 of Sept. 1984 whereby the two appellants Lakshman Debnath and Satrughna Debnath were found guilty of an offence under section 302 read with section 34 of the Indian Penal Code and were sentenced to imprisonment for life. Long and short of the charge leveled against them was that on 2-12-83 at Betadighi P.S. Mahisadal they did commit murder by intentionally causing the death of their cousin Subal Debnath. Before the learned Additional Sessions Judge the facts constituting the charge were mainly unfolded by the victims brother Sri dam Debnath (P.W. 1). Sridam Debnath described the incident in the following way: I am a resident of Betadighi within P.S. Mahisadal. Since about 10 years last my father Kanai Debnath is missing. We are three brothers. Subal was eldest, I am second and Haridasis our youngest brother. Haridas works as a domestic servant at Calcutta. Both Subal and myself are married and we used to Jive in our ancestral house together. I know these two accused (names and identifies the two accused correctly). They are sons of Bhuban Chandra Debnath who is elder brother of my father Kanai Debnath. The two accused are thus our cousins. The house of the two accused are only 7/8 cubits from our house to the east. There is a public path way to the south of our houses and it runs east to west. There is a Pan Boroj on the south of that public pathway. There is an Arjun tree on our homestead land. On 15th Agrahayan 1390 B.S. at about 2.30 p.m. I was on my courtyard. I heard a row between the two accused on the one hand and my elder brother Subal on the other. I saw accused Lakshman had a Chowki in his hand. Chowki is a long handled instrument with 7/8 pointed forks. The accused Satrughna had a cycle chain in his hand. They chased my brother Subal who retreated to his room out of fear. They were quarrelling over cutting of a branch of the Arjun tree. The two accused went inside Subals room and dragged him out. Satrughna then struck Subal with cycle chain. Then accused Lakshman pierced his Chowki on the face of Subal. Blood came out and then the two accused started beating Subal with hands and they pushed him towards their house. Then accused Satrughna hit my brother with a branch of Arjun tree all over body. Blood came out from his mouth and other places and he fell down unconscious I cried out and people came to the spot. The two accused thereafter collected the Chowki, chain and branch of Arjun tree and locked the door of there room from inside Srikanta, Niranjan Debnath, Jahar Pramanik and others came. I narrated the incident to them and thereafter took Subal to Khejuriberia P.H.C. Shortly afterwards the doctor told that Subal had died. Then under my instruction Jahar Pramariik took down this written ejahar. I went to Mahisadal P.S. and gave this written ejahar to the police officer. I put my L.T.I. on the written ejahar. Himangshu, Arati Debnath and Narayan Debnath saw the incident. On that night I stayed in the hospital. On the following morning police came and I identified the dead body of my brother Subal to police at hospital. Darogababu held inquest over the dead body there and sent the dead body to Tamluk for post-mortem examination. I took the police officer to our village and showed him the place of occurrence. Daroga babu collected blood-stained controlled earth from the spot by making seizure list. Blood stained Chowki and blood stained branch of Arjun tree were found in the room of the accused Lakshman and Daroga babu seized these articles under seizure list.

(2.) The aforesaid story as introduced by Sridam was sought to be confirmed by three alleged eye witnesses namely by Smt. Arat) Debnath (P.W. 2), Himangshu Sekhar Maity (P.W. 3) and Narayan Chandra Debnath (P.W. 5). Dr. Gautam Bera (P.W. 4) is the doctor of Khejuberia Primary Health Center. The injured victim was at first taken to him. P.W. 10 is Dr. Jagadish Chandra Kuilyawb held post-mortem examination over the dead body on 3-12-83. Jahar Pramanik (P.W. 6) and Srikanta Debnath (P.W. 7) are witnesses of seizure of the almost namely the Chowki (Ext. 1), cycle chain and the branch of the alleged Arjun tree, etc. The seizure was effected by Rampada Monda (P.W. 12), S.I. of police who took over investigation of the case on the morning of 3-12-83. The 1.0. seized blood stained earth (material ext. III) in presence of witnesses under seizure list ext. 2/2. He drew up a sketch map of the P.O. The map as his evidence shows unfortunately could not be found out at the trial. On 22-1-84 he received post-mortem examination report of Suhal Debnath sent by Dr. Jagadish Chandra Maity who held the post-mortem examination. On 13-3-84 he submitted charge-sheet under section 304/34/448 I.P.C. on completion of investigation. Thereafter in due course, the two accused persons were committed to the Court of Sessions. Before the learned AddI. Sessions Judge in all 12 P. Ws. including the four eye-witnesses, the two doctors and 1.0. were examined. The learned AddI. Sessions Judge believed the testimony of the eye-witnesses and came to the finding that the injured Subal was really murdered by the two appellants. He accordingly, convicted and sentenced them as already indicated before. Being aggrieved thereby the two appellants have come up in appeal for redressal of their grievance.

(3.) Their main grievance as set forth in paragraph XI of the memo of Appeal is that the learned judge erred in law in accepting the evidence of the alleged eye-witnesses 1, 2, 3 and 5 inasmuch 85 the evidence and circumstances on record conclusively showed that the incident had not taken place at the time, place and manner as alleged. This grievance has been placed before us in detail by Sri Roy, learned advocate on behalf of the appellants. We shall have to decide whether this grievance is unsubstantial or unreal. Sid by side we shall have also to examine the grievance placed before us by Sm. Joyenti Debnath widow of the victim Subal Debnath. Joyenti bas filed a petition before us under section 357 Cr. P.C. read with section 482 with a prayer that an order awarding compensation in her favour may be passed directing the appellants to pay to her and her two minor daughters compensation amounting to Rs. 15,000/-.