UPENDRA CHANDRA PODDAR Vs. EMPEROR

JUDGEMENT

(1.) There are thirteen appellants in this case who were tried by the learned Additional Sessions Judge of Faridpore with the aid of a jury on charges framed under Secs.302, 302/109 and 201, Indian Penal Code. The jury by a majority of 5/4 found the appellant Jogendra Nath Biswas guilty under Section 304(1), the appellants Rajendra Poddar and Sonaton Poddar under Section 304(1)/l09 and the remaining ten appellants all under Section 201, Indian Penal Code. The learned Judge in accordance with this verdict sentenced Jogendra, Sonaton and Rajendra to seven years rigorous imprisonment each and the remaining appellants to two years rigorous imprisonment each. The material facts alleged by the prosecution were as follows : On the day of occurrence there was a quarrel between certain Karikars and Namasudras. A mob of Namasudras approached the local hat where the Karikars were. On their way to the hat they met two brothers Abdul Barek and Momen who were entirely unconnected with any of the previous incidents. The appellants Rajendra and Sonaton, it is said, gave orders to seize these two men whereupon one brother Momen ran away, the other brother Barek remonstrated whereupon the appellant Jogendra speared him in the chest and pinned him to the ground. The appellants Rajendra and Sonaton said that if he were dead he should be dragged away whereupon the appellants Banka and Dwijabar began to drag the body by the legs.

(2.) With regard to the rest of the appellants the only allegation made against them by the prosecution witnesses was that some of them stayed behind and others went with the two men who dragged the body. The body apparently was not seen again until the following Friday at noon when it was recovered from a tank in the beel. Upon these allegations the appellant Jogendra has been convicted under Section 304 (1), Indian Penal Code, the appellants Rajendra and Sonaton for abetment of that offence and the remaining appellants under Section 201 of the Indian Penal Code. We have been taken through the charge delivered by the learned Judge to the jury by the learned advocate appearing for the appellants and we may say at once that we are unable to find any misdirection or non-direction amounting to a misdirection in the learned Judge's charge in so far as it relates to the offence alleged to have been committed by the accused Jogendra. So far as can be gathered from the evidence the defence appears to be that there was a quarrel between the Karikars and the Nama-sudras in which the latter were the aggressors. The defence further was that the body discovered in the beel was incapable of identification and that it was not proved that it was the body of Barek. On this part of the case the learned Judge delivered a full and detailed charge to the jury. He emphasised the important point that the jury must be satisfied that the body found was actually Barek's body and in connexion with this point placed the medical evidence as well as the other evidence in the case fully and completely before the jury. He then gave a detailed analysis of all the materials bearing upon this question of identification of the body.

(3.) On the second question whether it was the appellant Jogendra who caused the death of Barek, the learned Judge's analysis of the evidence was equally full and fair. He pointed out to the jury that the medical evidence did not help in this ease and that their conclusion depended entirely upon the amount of weight they were prepared to attach to the evidence of the eye- witnesses who deposed that they saw Jogendra striking the deceased man with a spear in his chest and pinning him to the ground. Upon this point we can find nothing in the charge of the learned Judge to which exception can be taken and we are of opinion that in so far as the verdict under Section 304 (1), Indian Penal Code, against the accused Jogendra is concerned the majority verdict of the jury cannot successfully be assailed. In dealing with the charge of abetment of culpable homicide made against the appellants Rajendra and Sonaton the charge delivered by the learned Judge is open to criticism. It should be remembered that the prosecution case on this point was that on the day of occurrence while the mob of Namasudras including the present appellants were making a hostile demonstration against the Karikars they were met by two brothers who had no connexion with either party. Then it is said that the appellants Rajendra and Sonaton gave orders to seize the two brothers whereupon one took to his heels and the other stopped and protested. At that moment the appellant Jogendra speared him through his chest and killed him.