ASHIM DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) These three criminal appeals arise out of the common judgment and order dated 25th Nov. 1978 passed by the learned Sessions Judge, Kamrup in Sessions Case No. 140 (K-B) 1974 convicting all the four accused-appellants under S.302 read with S.34 of the Indian Penal Code, for short 'I. P. C.' and sentencing them to suffer rigorous imprisonment for life. Since the present appeals arose out of the aforesaid common judgment we propose to dispose of all the three appeals together by this judgment.

(2.) On 30-8-73 at about 6 to 6.30 A.M. while deceased Desiram wearing only a gamcha (big napkin) was taking tea sitting on a chair on the western varandah of his house, Horeswar came running with a spear in his hand and stabbed Dasiram on the calf of his leg. Dasiram wanted to get up for going inside his house by catching hold of the post of the varandah which broke down and Dasiram fell down on the court yard near the plinth. At that particular moment Ashim with a ballam, Surjya with a dagger and Bhubaneswar with a 'Satpatia' (a weapon having seven pointed iron nails, which is used for catching fish) in their hands entered into the house of Dasiram. All the above persons attacked Dasiram with their weapons. Thereafter Surjya, Ashim and Bhubaneswar left the place running, but Horeswar stayed back and again stabbed Dasiram on his leg and went away towards his house. It has been alleged that Horeswar came to the place of occurrence wearing a gamcha (big napkin) which fell off and he was standing there in a naked condition and that the gamcha of Horeswar was lying near the dead body. At first Horeswar came running and on hearing the sound, the second wife of Dasiram, Smt. Tarini came out and saw the occurrence. According to the prosecution the two wives of deceased, Dasiram namely; Jamini and Tarini, sisters and their younger sister Pranita, who was in the house at the relevant time to help Tarini as she was in her family way, saw the attack by the above four persons on deceased Dasiram. As a result of the attack by the above persons, Dasiram died. Police after investigation submitted charge sheet against all the four accused persons and the learned Sessions Judge tried them under S.302 read with S.34, I.P.C. and found them guilty and convicted accordingly.

(3.) Defence version was complete denial. According to the defence, as unfolded in the cross-examination, there was a boundary dispute between deceased Dasiram and accused Horeswar and on the morning of the date of occurrence the deceased climbed up the coconut tree which was on the disputed boundary for plucking fruits and when Horeswar saw him climbing deceased wanted to get down hurriedly and as a result he slipped down and fell from the middle of the tree on the fencing, in consequence of which he got injuries. After being injured, deceased returned to his house and fell down in the courtyard of his house and ultimately succumbed to the injuries. Defence examined four witnesses in support of their plea. Accused Surjya took a separate plea that on the morning of the date of the occurrence he left by bus for Gauhati. Accused Bhubaneswar is the son of accused Horeswar. Accused Ashim is the son of elder brother of accused Horeswar.