BADAL SARDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and sentence passed by the learned Additional Sessions Judge, 1st Court-Alipore, 24-Parganas (South) in Sessions Case No. 6 (10)/90 corresponding to the Sessions Trial No. (4)/92 convicting the accused persons and sentencing them to suffer imprisonment for life under section 302/34 Indian Penal Code. One Dibakar Sardar lodged the complaint with the police station alleging that on 8.7.87 at about 5.30 a.m. he along with his father Kalipada, uncle Nemai Sardar and cousin Nirmal Sardar went to plough their lands at plot No. 980. Suddenly his neighbour and cousin brother Bhola Sardar, Badal Sardar, Kartick Sardar, Ganesh Sardar and Subal being armed with lathi, spears, sword, iron rod came to assault them. The informant Dibakar and his father Kalipada were running away out of fear and Kalipada being an old person fell down on the ground. Bhola struck Kalipada on the head with iron rod and the others assaulted Kalipada with lathi. Those persons started dragging him towards the house. The informant watched the matter from behind and saw that Anil Sardar, Gopal Sardar, Gopi Sardar, Gokul Sardar, Goutam Sardar, Sentu Sardar, Debu Sardar, Akhil Sardar, Sachin Sardar and Dilip Sardar and many others being armed with deadly weapons joined them and kept on bringing Kalipada, beating him all the way. Gopi had a pipe gun, Sunder had a bill hook used for cutting trees and Probin had a sword. When they came near the house, Probin assaulted Kalipada on the back by means of the sword and others assaulted him at random and took him to Battala. Kalipada was taken in a van with the help of the relatives and others to Momrejgarh Hospital. After receipt of the complaint the case was started and after completion of investigation police submitted chargesheet. The learned Trial Judge framed charge under section 302/34 IPC to which the accused persons pleaded not guilty and claimed trial. After completion of the trial the learned Judge found the accused persons guilty and recorded the order of conviction and sentence as stated above. The prosecution in this case has examined as many as twenty witnesses including the informant, the witnesses to the occurrence, witness as to the inquest, the Investigation Officer and the doctors who examined Kalipada and the autopsy surgeon. P. W. 2, P.W. 10 and P. W. 11 were declared hostile by the prosecution.

(2.) Mr. J. N. Ram appeared on behalf of the appellants No. 1, 2, 9, 11 & 13 and submitted that Bhola's involvement was not supported by medical report and that no independent witness was examined and the history of the assault was not stated to the doctor. It is further contended that in absence of independent and reliable witnesses the order of conviction and sentence is not sustainable. Mr. Sujay Bhattacharya appearing for the appellant Nos. 3-8, 10, 12, 14-18 submitted that the prosecution could not establish the alleged place of occurrence from where the injured was taken to the hospital; that the appellants are the near relatives of the informant and civil suit was pending between the parties and that there are discrepancies as to the nature of injuries and number of injuries and that there is no evidence towards the element of common intention under section 34 IPC.

(3.) Mr. Subhasish Pachal, the learned P.P., appearing on behalf of the State has contended that the incident took place at paddy field where the victim was assaulted initially by five persons and subsequently the other accused persons joined them and started dragging Kalipada towards his house. It is the contention of Mr. Pachhal that minor discrepancies should be ignored and the evidence of P.W.1, 2, 4, 5 and 6 taken together with the medical evidence, will go to show that the order of conviction and sentence is sustainable.