SWAPAN KUMAR MALLICK @ CHHOTKA Vs. THE STATE

JUDGEMENT

(1.) This appeal has arisen out of an order of conviction for an offence under section 302/34 I.P.C. and sentence of life imprisonment thereunder passed by the learned Additional Sessions Judge, Alipore, 24-Parganas in Session Trial No. 6 of March, 1977. The prosecution case as presented before the learned Additional Sessions Judge stood as follows:-

(2.) At about 11 p.m. on 4th Nov. 1975 the youngest brother of Rakhahari Ghosh was returning to his house at premises No. 79-A, Maniktola Main Road after beating drums in a local club. On his way he (Bagha) met three persons namely Tarak Ghosh, Pagala Ghosh and Barka Mallick. Barka tore off the Jhalar of Bagha. Bagha abused all of them in filthy language and came running to his house. Tarak, Pagala and Barka chased him. The said three persons entered into the house of Bagha. There was on exchange of hot words between these persons on one side and Rakhahari and Bagha on the other in course of which Barka bit the fingers of Rakhahari and Rakhahari on his turn slapped Barka. On that very night Satyagopal Ghose, brother of Rakhahari lodged a diary at the local P.S. accompanied by his mother Abala. One Anil Ghose, uncle of Parak Ghosh lodged another diary over the self-same incident. The further prosecution case is that on the next day i.e. 5.11.75 at about 10 a.m. Barka accompained by two of his brothers namely Chhotka and Mantu came in front of the house of Rakhahari situate at 79/A Maniktola Main Road and 81 Maniktola Main Road in furtherance of their common intention to commit murder of Rakhahari. After coming in front of the house of Rakhahari as aforesaid Barka Mallick and Chhotka Mallick waited outside while Mantu entered into the house of Rakhahari calling him. In answer to that call Rakhahari came down stairs from the first floor of his house when Mantu began to assault him with a wooden bar. Receiving this assault Rakhahari ran forward a few steps when he was assaulted by a bamboo pole by Barka. Thereafter Chhotka brought out a knife and stabbed Rakhahari on the abdomen causing bleeding injuries. Receiving this injury Rakhahari gave out that he was stabbed by Chhotka and he asked Purna to remove him to the nearest hospital. Thereafter Rakhahari was taken to the Medical College, Calcutta by Purna Ghose with the help of some local persons, At the hospital however Rakhahari was declared dead. Shortly thereafter the Police Officer came to the locality and recorded the statement of Purna Ghose which was treated as F.I.R. A Police Case was started immediately against the three persons namely Barka, Chhotka and Mantu. After usual commitment proceeding all the three said persons who figured as accused were committed to the Court of Sessions at Alipore to stand their trial under section 302/34 I.P.C. Before the learned Additional Sessions Judge the accused persons took the defence that they were falsely implicated. As many as 33 P.Ws. were examined at the trial. The learned trial judge relied upon their testimony and convicted and sentenced Chhotka alias Swapan Kumar Mallick the present appellant as indicated before. His other two brothers namely Barka and Mantu were however acquitted by the learned Additional Sessions Judge. Hence this appeal by Chhotka.

(3.) Mr. Dilip Dutta, learned advocate appearing for the appellant has seriously assailed the first part of the prosecution story regarding the alleged incident dated 4.11.75 by saying that his client Chhotka and his two brothers namely Barka and Mantu had nothing to do with Rakhahari and his brother Bagha on that day. Mr. Dutta has invited our attention to two General Diaries namely Ext. 10 and Ext. 11 which were lodged regarding that earliar incident dated 4.11.75. Ext. 10 was lodged by Satyagopal who was accompanied by his mother Abaia (vide the evidence of Satyagopal P.W. 6 and Abala P.W. 24). It is significant to note that the name of Barka or any of his brothers was never disclosed in this G.D. The incident recorded instead the names of Pagala, Tarak and Sambhu. Similarly the other G.D. Ext. 11 read with the F.I.R. Ext. 5 lodged by Purna Ghose P.W. 3 the brother of the appellant shows that the earlier incident occurred in between Anil, Tarak, Pagala and Sambhu on the one side and Bagha on the other. The F.I.R. is clear that Rakhahari assaulted Anil Ghose, the uncle of Tarak over the incident and Anil sustained an injury on his head. Mr. Dutta has rightly argued that in view of this context or background of the case it is difficult to understand as to why Barka or his brother namely Mantu and Chhotka would be up in arms against Rakhahari and Bagha. This mode of argument did also impress the learned Additional Sessions Judge. We are tempted to quote below the relevant portion of his judgment thus:- "It cannot be said that the name of Barka was purposely omitted by the Police Officer in G.D. entry. So undoubtedly in view of this G.D. entry presence and participation of Barka in the incident of 4.11.75 becomes to some extent doubtful". Nevertheless the learned Additional Sessions Judge convicted Chhotka on the ground that "there are as many as 9 eye witnesses of the occurrence who saw the incident which took place in a broad day light. It is also evident that the incident must have taken place just in front of the house of the victim Rakhahari. So some of these witnesses who are local people are natural witnesses of the occurrence. It cannot be expected that they would implicate the accused persons falsely".