KAMAL KANTO DAS Vs. STATE

JUDGEMENT

(1.) This reference under Section 374 of the Cr. P. C. for the confirmation of the sentence of death passed upon Kamal Kanto Das and his appeal arise out of his trial for having murdered Nemai Charan Das, an uncle of his. His father Netai was also put on trial along with him and the charge against both was under Section 302 of the I. P. C. read with Section 34 of the I. P. C. Netai was acquitted of the charge on a majority verdict of 5: 4. Kamal, however, was found guilty of the charge by a majority verdict of 8: 1. The learned Judge agreed with and accepted this verdict, convicted him and sentenced him to death,

(2.) Nemai was a brother of Netai, father of Kamal, the appellant. Nemai used to live in Holding No. 29 which abuts on Umesh Banerjee Lane proceeding from West to East and also on another branch of Umesh Banerjee Lane proceeding from the main branch northward. Holding No. 29/1 which is in the possession of Netai lies on this northward branch of Umesh Banerjee Lane and adjoins Holding No. 29 occupied by Nemai on the north. Holding No. 29/1/1 belonging to Ganesh adjoins Nemai's holding on the north and abuts on the northward branch of Umesh Banerjee Lane. Holding No. 29 originally belonged to Charushila, an aunt of the three brothers, Nemai, Netai and Ganesh and she made a deed of gift in favour of Nemai in respect of his holding. One-half share of holding No. 29/1 also belonged to Nemai but Netai acquired this one-half of Nemai by purchase.

(3.) Netai built a tin shed and a part of this Ha shed rested on the boundary wall between Nemai's house and Netai's. This boundary wall is said to belong to Nemai. Nemai Das instituted Title Suit No. 412 of 1956, the plaint of which is marked Ext. 12, in the 2nd Court of the Munsif at Howrah on 21-9-1956. This suit was pending at the time of the occurrence. Nemai Das filed an application before the Howrah Municipality on 27-4-1956 alleging that Netai had constructed a small unauthorised shed of corrugated iron roofing without any plan or sanction of the Municipality, with the supporting poles placed on the southern wall of Nemai's double storeyed building at 29 Umesh Banerjee Lane and praying for demolition of the said unauthorised structure. There was a second application on 8-6-1956, but that application has not been proved. There was a third application Ext. 13/1, on 14-8-1957. As a result of the first and the second applications of Nemai the Municipality called upon Netai and Ganesh to provide side space on the south of holding No. 29/1, Umesh Banerjee Lane. This requisition was made on 4-7-1956 and as the requisition was not complied with the Municipality filed a case before the Municipal Magistrate on 5-9-1956. That Municipal case was also pending at the date of the occurrence.