UTTAM MISTRY Vs. STATE

JUDGEMENT

(1.) THE appellant, Uttam Mistry, was convicted for the offence under Section 302/34 of the Indian Penal Code and was sentenced accordingly by the learned Sessions Judge, Murshidabad. The said judgment of conviction dated 8. 9. 1989 and the order of sentence dated 9. 9. 1989 are under challenge in the instant appeal. The prosecution case was: -On 6th Chaitra, 1390 B. S. at about 2-30 P. M. , one Mahadeb Mistry was murdered on his way to Berhampore. He had a bag containing cash of Rs. 5, 000/- and some documents relating to his litigation with Ananda Mistry. Soon after his coming out of the house, one Tapan Mistry snatched away the said bag. Swapan Mistry and Uttam Mistry assaulted him with wooden stick. Ananda mistry instigated them in the commission of such crime. Accused Tapan Mistry was charged for the offence under Section 392 of the indian Penal Code whereas Ananda Mistry was charged for the offence under section 302/109 of the Indian Penal Code and accused Swapan and Uttam mistry were charged under Section 302/34 of the Indian Penal Code. The learned sessions Judge found accused Ananda Mistry not guilty of the offence under section 302/109 of the Indian Penal Code and accused Tapan Mistry was found not guilty of the offence under Section 392 of the Indian Penal Code. Accused Swapan and Uttam Mistry, however, were found guilty under section 302/34 of the Indian Penal Code.

(2.) SO far accused Swapan Mistry was concerned, he was released on bail and the learned S. D. J. M. , Berhampore was directed to hold an enquiry regarding his age. Relying upon the relevant provisions of the West Bengal Children Act, 1959, accused Swapan Mistry was not sentenced pending such enquiry.

(3.) PROSECUTION in order to establish the charge under Section 302/34 of the indian Penal Code against the appellant convicted Uttam Mistry examined as many as 10 witnesses. Of them, P. W. 1 is the daughter of the victim. In her evidence in chief, she stated that after her father, the victim, went out of the house, accused Tapan Mistry started following him. He suddenly hit her father with a Lathi on his face. Her father caught hold of the Lathi, Tapan Mistry then snatched the bag containing cash and the documents and ran away leaving his cycle behind. Her father chased him. Then accused Swapan and the present appellant, Uttam Mistry arrived in front of her father and assaulted him with two pieces of wood, ordinarily known as Ara. Her father was repeatedly struck on his head, face and chest. He fell down. The assault continued. The victim died there. She then stated that Majem, Joynal, Khodajul and Majems son shifted her father to hospital. The Medical Officer declared him dead. P. W. 1 deposed that she made a statement to the police officer at Hariharpara Primary Health Centre.