STATE Vs. ABINASH DUTTA

JUDGEMENT

(1.) THE two accused -appellants are brothers - Abinash being elder to Kalidas. Both have been found guilty Under Section 302/34, IPC But Abinash has been sentenced to death mainly because of his past conduct which had led to his conviction earlier Under Sections 302 and 307, I. P. C for the offence of committing murder of his daughter and mother -in -law, in which transaction attempt was also made to murder his wife. This was in Sessions Trial No. 19 of 1970. Kalidas has, however, been awarded sentence of imprisonment for life.

(2.) THE place of occurrence is the house of the two brothers which had no other inmates. It is situated at Rabin -dranagar, about a mile off from Sonamura Police Station. The date of occurrence is 23 -4 -79. Sankar deceased with the company of Chhabi Meah P.W. 3 visited this house at about 8 -30 P.M. To believe Chabi, while they were passing in front of the house, Kalidas called Sankar in saying he had some business with him. Earlier this witness had met Sankar near Srimantapur Land Custom Check Post. It is virtually an admitted position that Sankar had his first bout of drinking in a nearby B. S. F. Camp The occasion which led the two to come towards the house of Sankar was that on Sankar knowing that Chhabi, who is a driver but had no job at his hand then, it was thought that Chhabi should have a talk with Sankar's elder brother to finalise if he would like to drive the latter's vehicle. According to this star witness of the prosecution as soon as Sankar entered inside the house of Kalidas the latter demanded money from the former when Sankar replied that he would pay money on the next day. This led Chhabi to enter inside the hut to bring back Sankar. One Trishul was then seen in the hand of Kalidas As Sankar had refused to pay money, it is the case of the prosecution, that Abinash came with a dao in hand from a nearby room saying why no money was being paid. The brave man Chhabi snatched away the dao. This led Abinash to arm him with a dagger this time. Kalidae with the 'trishul' in hand pushed Sankar inside a room and Chhabi saw Abinash stabbing Sankar with dagger in the chest. Alarm was raised at this by Chhabi saying 'Sankar has been killed, has been killed'. Hearing his cries villagers did come and they saw Chhabi running away saying Sankar has been cut by Abinash and Kalidas. Thereafter Chhabi could not be found before 1 -5 -79 when he was examined by the I. O. and his statement Under Section 164, Cr. P. C. was also got recorded.

(3.) THE defence version as has been given out by accused Kalidas in his 313 statement is that on the day in question Chhabi and Sankar had gone to his house. After some time P.Ws. 1, 2, 4 and 6 also came. They brought meat and wine from some house with the help of Chabi. All of them took drink. Some quarrel then took place regarding payment of money. Sankar took out a dagger from his waist which caused alarm in the mind of Kalidas and he ran towards Sonamura Police station. Some time thereafter he found PWs 1, 4 and others in the Thana and he was lodged inside the lock -up. After half an hour Kalidas found that the condition of his elder brother was serious and he was taken to the hospital.