BADAL SARDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This criminal appeal is directed against the judgment and the orders of conviction and sentence passed by the learned Additional Sessions Judge, 2nd Court, Nadia in Sessions Trial No. II of March 1993/Sessions Case No. 1 of September, 1990. By his impugned judgment the learned Additional Sessions Judge convicted all the four accused persons who are appellants in this appeal, under Section 302/34, I.P.C. and sentenced them to imprisonment for life and also to a fine of Rs. 500/- each, in default to R.I. for six months more. All the four appellants/accused persons were charged under Section 302/34, I.P.C. for murdering one Shyam Sardar at about 8/8.30 p.m. on 8-12-87. The learned Additional Sessions Judge on trial found them guilty of the charge and convicted and sentenced them as stated above. Being aggrieved by the conviction and sentence the appellants/accused persons have preferred the present appeal.

(2.) The appellants are four in number. The appellant Badal Sardar is the father of the other three appellants Mongal, Budhu, and Goutam. It is the prosecution case that the deceased Shyam Sardar and the accused persons all belong to the same village, Gramsimulia under P. S. Nakashipara in the district of Nadia. The informant Niranjan Sardar and the deceased Shyam Sardar are uterine brothers having the same mother, but their father were different as their mother married twice. The case as stated in the first information report which was lodged by P.W. 1 Niranjan Sardar is that a dispute about cutting of earth over a land adjacent to the house of the informant Niranjan Sardar was going on between them and the accused persons who are their neighbours and over that matter a meeting was going on at Haritala of their village in the evening of the date of occurrence, but neither the informant Niranjan nor his elder brother deceased Shyam was present in that meeting and they were represented by their cousin brothers (the sons of maternal uncle) Sagar Sardar and Nagar Sardar and at that time at about 8/8.30 p.m. when Shyam Sardar was returning after working as a labour in the brick kiln of Sankar Babu near Kathalbere and was proceeding to his house after crossing Haritala he was sudeently chased from behind by the four accused persons with lathi and kirich in their hands and they caught hold of him non the courtyard of Shasan Sardar (near Shyam's house) and there Shyam was hit near his throat with Kirich by some one of the accused persons and then the accused persons fled away across the field and the injured Shyam ran and came to the house of Bhakta Sardar and fell down on the courtyard. It is also stated in the FIR that on receiving the news of the said incident the villagers who were attending the meeting came to the spot and nursed the injured Shyam and were making arrangement for sending him to hospital but after sometime Shyam expired. It is also stated by the informant in the FIR that on being informed of the incident by Ajit Sardar at the field the informant Niranjan came to the spot. It is further stated in the FIR by the informant that there he learnt from Srimati Puspa Sardar, wife of Shasan Sardar that an altercation and scuffle took place between his elder brother and the accused persons and as there was no other male person there the incident could not be stopped, and she raised shouts calling people and in the meantime the incident took place and the accused persons then fled away.

(3.) Now let us look to the evidence on record. P.W. 1 Niranjan Sardar is the informant who lodged FIR. He is the younger brother of the deceased Shyam Sardar. According to his evidence the murder took place at 8 p.m. and at that time he was in his house and was busy in calling people for meeting. The place of meeting, he says, was at Haritala in their village. From him we get that Haritala is intervened by 10/12 residential houses from their residence and that meeting was called for a salish in respect of a piece of land adjacent to his house and that of accused Badal Sardar. He says that from his house he heard a row and went to the house of Puspa Sardar and saw that the dead body of his brother Shyam Sardar was lying in the courtyard of Bhakta Sardar. The deceased, he says, had injury on his throat. His evidence is that the house of Puspa was attached to the house of Bhakta and both Puspa and Bhakta had common courtyard. He further says that Puspa told that Badal, Mongal, Goutam and Budhu murdered Shyam Sardar and left the place. According to his evidence the murder was committed in the courtyard of Puspa, but he did not see the accused persons at the spot. He further says that like him many persons such as Netai, Tarak, Debi and Bhakta went to the spot and Puspa told about the incident to many persons including himself. This Puspa who has been examined as P.W. 4 is the wife of the maternal uncle of P.W. 1 Niranjan Sardar. The name of the husband of Puspa is Shasan Sardar. P.W. 1 Niranjan says that his brother Shyam Sardar used to work in the brick kiln of Sankar Babu and he used to return borne by 8 p.m. every night. From his evidence we get that Bhakta Sardar now resides at a different place under P. S. Kaligunj. This has been taken from P.W. 1 perhaps to explain the non-examination of Bhakta Sardar who was cited as a witness in the charge-sheet. It should be however noted here that this Bhakta Sardar is a person different from the father of Niranjan whose name is also Bhakta Sardar. From his cross-examination we get that the village Kathalberia is to the east of their village and the residence of Puspa is to the south of Haritala intervened by 20/22 houses. We also get from P.W. 1 Niranjan that his house is to the cast of Haritala intervened by 20/22 houses. Although in his examination-in-chief he says that he was at the relevant time in his house busy in calling people for meeting yet in his FIR he stated that at the relevant time he get information about the incident at field from Ajit Sardar. In his cross-examination however he says that at that time he was in the field situated in the northern side of the village. The learned Advocate for the appellants comment that from the different versions given by the petitioner in the FIR and in examination-in-chief and cross-examination it is difficult to get any consistent idea as to where actually the P.W. 1 Niranjan was present at the relevant time and how he get the information or how he was actuated to come to the spot. In his cross-examination P.W. 1 Niranjan says that he had no quarrel with the accused Badal Sardar, but Badal Sardar had often quarrel with the deceased Shyam Sardar. He denies the defence suggestion that Shyam claimed share in his homestead and for that reason their relationship was strained and he and Ajit murdered Shyam Sardar and falsely implicated the accused persons.