DIGENDRA ALIAS DWIJENDRA NATH ROY Vs. STATE

JUDGEMENT

(1.) This appeal is against an order dated the 31st. July, 1964 passed by Shri B. Basak, Addl. Sessions Judge, Jalpaiguri, convicting the accused-appellant under sections 302 and 307 of the Indian Penal Code and sentencing him under the former section to undergo imprisonment for life and under he latter one to undergo rigorous imprisonment for five years, sentences to run concurrently.

(2.) The prosecution case unfolds a sad and sordid story of a father killing his child, an infant-in-arm and also attemping to kill his wife and another minor son. Digendra alias Dwijendra Math Roy is the son of one Kimsundar Ri.y (P.W. 11). He was living with his wife and two children in separate ness but in the same house with his father and step-mother at Madhya Narrrthali. On the 28th September 1963 in the evening the accused-appellant returned home, took his meal and went out again towards the village Harimandir for participation in the distribution of prosad and thereafter spent the night at the house of a friend. Next morning, namely, on the 29th September 1963 he came back home and after resting for some time he went to his father's portion of the house at about 8 or 9 a.m. when his parents were frying puffed rice in the kitchen. The accused pressed for the return of his money which was given to his father as loan and when P.W. 11 refused the accused is stated to have enquired as to how would he then feed his children. To that P.W. 9, Baharmani, who is the step-mother said that if he was unable to feed his children, 'he should kill them and being so told, the accused drew out a beki dao from the wall and started sharpening it. At that time he asked his wife Fuleswari to take her bath and then boil the rice. Fuleswari took her daughter aged about 6 months on her lap and also her minor son by the hand and started proceeding towards the river for her bath. The accused then called her back and when she came near him, he suddenly caught her and tried to assault her. In her attempt to free herself from the clutches of the accused during this scuffle the baby daughter fell down and she was at once dealt with 'two-murderous blows by the accused-one on the right cheek and another on the abdomen as a result whereof the baby died. In the meanwhile P.W. 1, Fuleswari having extricated herself from the clutches of the accused, started running towards the east-all the while being chased by the accused and when she came near a well, her son Paresh alias Kandura, who is aged about 4 years and was standing over there, was struck on the neck by the appellant with the beki dao causing bleeding injuries. Fuleswari continued to run raising alarm when the accused succeeded in catching hold of her hair. She extricated herself but the accused caught hold of her sari, which was the only thing she had on at that time. Frightened of death she left the sari and started running stark naked. The accused finding that she was going out of his clutches:, threw the beki dao towards her and the same caused bleeding injuries on Fuleswari's neck. In the meanwhile the alarm raised by P.W. 1 had attracted the attention of a neighbour close by, namely, Dharani Thaktur (P.W. 3) who came out of his house and saw Fuleswari in that condition and the accused chasing her with a beki dao in his hand. Dharani cried out to Sushen (P. W. 4), who was at the time living in the house of Bhaben (P. W. 14), a next door neighbour, to come out. When Sushen opened the door Fuleswari managed to get in and the door was closed, thereby the accused could not enter therein. Dharani found the injured boy running and crying and took him to Bhaben's house. Bhabern's wife gave a cloth to Fuleswari to cover her embarrassment. The accused in the meanwhile fled away towards the south due to the alarms raised. Being attracted by the noise, one Sashi Mohan Roy (P.W. 12) and Subal Chandra Roy (P.W. 2), who is the son-in-law of P.W. 11 and who lodged the first information arrived at the place of occurrence and Fuleswari narrated the incident to Bhaben's wife and also to the above-mentioned Sushen, Sashi Mohan, Subal and Dharani. Thereafter, they proceeded in a body to the house of the accused along with the boy whose injury was bandaged. The boy was unfortunately still bleeding and thereupon he was sent to the house of P.W. 1's uncle and therefrom to the hospital at Kamakshyaguri where Fuleswari as well as her son were treated by the doctor. The party upon entering the house of the accused-appellant found the baby daughter lying dead in the courtyard and further found tha P.Ws. 9 and 11, namely, Baharmani and Kimsundar were absent. The chowkidar came and took charge of the dead body of the child and also the Anchal Pradhan arrived; Subal left for the Kamakshyagurl police-station and lodged the first information there (Ext. 1). The accused was not found in the village then; but towards the evening he was apprehended near his house by Mahendra (P.W. 8) and others after being surrounded. An A.S.I, of the Kamargram Police-station came to the place of occurrence on the next morning and took charge of the accused and the dead body. The accused made a statement to him and produced the beki dao. After an inquest, the dead body was sent to the Alipurduar hospital for post-mortem examination. Upon completion of the investigation the charge-sheeit was submitted against the accused under section 302 of the Indian Penal Code on the 23rd. March 1964. The Committing Magistrate thereafter sent the accused up to the court of session under section 302 of the Indian Penal Code and there an additional charge under section 307 of the Indian Penal Code was framed and the accused stood his trial under both the charges, namely, sections 302 and 307 of the Indian Penal Code.

(3.) The defence case inter alia is that the accused-appellant is not guilty and he did not commit the murder. The further defence as would appear from the accused's statement under section 342 Cr. P.C. and also the trend of the cross-examination is that the accused suffers from epileptic fits and at the material time he had no sense and therefore he was incapable of knowing the nature of his act or that he was committing something which was wrong or contrary to law.