SHYAMAGHANA Vs. STATE

JUDGEMENT

(1.) The three appellants stood charged under S.302 read with S.34, Penal Code ( for short, the 'Code') with having committed the murder of Gupteswar Mallik (hereinafter to be referred to as the 'deceased') on 17-8-1980, in furtherance of their common intention. The appellant Shyamaghana stood separately charged under S.25(1)(a), Arms Act, for being in unlawful possession of a gun without a licence on the same day. The three appellants, it was alleged, having lost in the litigations with the deceased as evidenced by the judgments and orders (Exts. 13 to 16), went to the land of the deceased where he had gone for the purpose of cultivation with his three labourers (P.Ws. 1 to 3) and the appellant Shyamaghana asked the deceased to pray God in his last moments. The appellants Shyamaghana and Brundaban had each a gun and the other appellant Sridhar had a Farsa (M. O. II), a knife and a lathi. The appellant Shyamaghana fired a shot from his gun at the deceased whereafter the appellant Brundaban also fired a shot from his gun at the deceased who fell down. The appellant Shyamaghana then snatched away the Farsa from the hands of the appellant Sridhar and dealt blows on the neck of the deceased. The appellant Sridhar thereafter brought away the Farsa from the hands of the appellant Shyamaghana and dealt a blow on the chest of the deceased. The assault on the deceased by the three appellants resulted in his death. On the basis of the FIR (Ext.1) lodged by Purna Chandra Pradhan (P.W. 1), investigation followed in the course of which witnesses were examined, M.O.I. was recovered on production by P.W. 12 to whom the gun (M.O.I) had been handed over by the appellant Shyamaghana after the occurrence and M.O.II with stains of blood was recovered from the possession of the appellant Shyamaghana. The wearing clothes of the appellant Shyamaghana including a banian (M.O.V) with suspected stains of blood were also seized. The gun had been examined by the Ballistic expert and the articles with the suspected stains of blood had been put to chemical and serological tests. On the completion of investigation, a charge-sheet was placed against the appellants.

(2.) To bring home the charges, the prosecution had examined thirteen witnesses. Of them, P.Ws. 1 to 3 had figured as witnesses to the occurrence. The defence of the appellants was one of denial and false implication owing to previous strained relationship with the deceased. On a consideration of the evidence, the learned trial Judge has held that the charge under S.25(1)(a), Arms Act, against the appellant Shyamaghana had not been established. He has, however, found that the charge under S.302 read with S.34 of the Code has been brought home to the appellants, who have accordingly been convicted and sentenced to undergo imprisonment for life.

(3.) Miss Mira Ghose, appearing for the appellants, has submitted that the evidence of P.Ws. 1 to 3 is not worthy of credence and as in the first information report, no allegations had been made that the appellant Brundaban had fired a gun shot and that the appellant Sridhar had gone to the spot with the weapons and had assaulted the deceased, the order of conviction against these two appellants is unfounded and cannot be sustained. She has submitted that the evidence against the appellant Shyamaghana is highly unsatisfactory and should not have been acted upon. Mr. A. Rath, the learned Additional Standing Counsel, has supported the finding of the learned trial Judge that the appellant Shyamaghana had assaulted the deceased to death and had committed his murder. He has submitted and, in our view, very fairly so, that the evidence would not warrant a conviction of the other two appellants.