BAHARAI MURMU Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Appeal is directed against the judgement and order dated 07.06.2004 & 08.06.2004 passed by Additional Sessions Judge, F.T.C. 2, Purulia in S.T. No. 24/2003 arising out of S.C. No. 13/1994 convicting the appellant for commission of offence punishable under Sections 302 / 324 /447 of Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/- in default suffer rigorous imprisonment for further period of three months for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer simple imprisonment for three months for the offence punishable under Section 447 of the Indian Penal Code and to suffer rigorous imprisonment for two years for the offence punishable under Section 324 of the Indian Penal Code, all the sentences to run concurrently.

(2.) The prosecution case, as alleged, against the appellant and other accused persons, is to the effect that on 28.07.1991 at about 7.00 AM accused Sanatan Murmu and his three sons Jivan, Baharai and Jeehur were ploughing the land of Surajmoni Mandi forcibly and when Surajmoni protested, Sanatan alongwith his three sons including the appellant and his wife Soramoni (since deceased) attacked and assaulted Mohan (son-in-law of Surajmoni) with lathi, Tangi, Axe etc and the weapons were supplied by Sanatan's daughters-in-law, Chandmoni and Fulmoni. At the time of assault, Mohan's wife Prathami and Surajmoni (P.W. 2) and informant Suku (P.W. 8) tried to rescue Mohan. They were also assaulted and suffered injuries. Mohan was murdered by the accused persons at the spot and thereafter the accused persons left the place of occurrence. Injured persons, Surajmoni, and Prathami were treated at the hospital. On the complaint of Suku Murmu F.I.R. being Santuri P.S. Case No. 39/91 dated 28.07.1991 under sections 148/149/447/324/325/302 of Indian Penal Code was registered against Sanatan Murmu, Jiban Murmu, Bahai Murmu and Jeeur Murmu. In the course of investigation, Santan died and charge sheet was filed against the accused persons including the appellant under sections 148/149/447/324/325/302 of Indian Penal Code as Jeehur Murmu alias Manasaram was a minor and his case was split up and the case was committed to the court of sessions. Charges were framed under section 148/149/447/324/325/302 against the appellant and the other accused persons. Prosecution examined twelve witnesses and exhibited a number of documents. In conclusion of trial, the trial Court by judgement and order 07.06.2004 & 08.06.2004 convicted and sentenced the appellant, as aforesaid. By the self-same judgement and order, the other accused persons were acquitted by the charges leveled against them.

(3.) Mr. Mallick, learned Counsel appearing for the appellant argued that the trial judge could not have convict the appellant under Section 302 simpliciter when charges have been framed against him and other accused persons under Section 302 read with Section 149 of the Indian Penal Code. Other accused persons have been acquitted of the charges levelled against them and there is no evidence on record that the appellant had assaulted the victim alone. Hence, the conviction is liable to be set aside on that score alone. He also drew my attention to the divergence in the version of P.W. 2 and that in the First Information Report (lodged by another eye witness P.W. 8) with regard to the nature of weapon carried by the appellant. He also submitted that it is doubtful that Surajmoni is an eye-witness as she admitted in crossexamination that she was assaulted on the village path whereas the incident occurred in the paddy field which was far away from the village and could not have been seen from the said village.