NAYAN MANDAL Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by three persons named Nayan Mandal, Panchanan Mandal and Moti Lal Mandal who have been convicted by the Sessions Judge of Faridpur on a trial with the aid of a jury and convicted under Secs.148 and 304 (part 1) read with Section 149, I.P.C., and sentenced as follows : Nayan Mandal to rigorous imprisonment for ten years under Section 304 (part 1) read with Section 149, I.P.C., and Panchanan Mandal and Moti Lal Mandal to five years rigorous imprisonment under Section 304 (part 1) read with Section 149 I.P.C. No sentences were inflicted under Section 148, I.P.C.

(2.) The case for the prosecution was that on the day of occurrence the complainant with a number of other persons had gone to cultivate a certain plot of land, and that the accused came in numbers-variously armed and ordered them to stop cultivating the land. The complainant's party refused and thereupon the accused attacked them and one Tarini was killed and one Lakhi Kanta was also injured and died afterwards. The defence was that the accused were in possession of the land and were cultivating it, and that the complainant's party came up and attacked them while they were peacefully cultivating the land and that any injuries, which were caused, were caused by the accused in the exercise of their right of private defence.

(3.) On behalf of the appellants three points were argued before us. It was first contended that the learned Sessions Judge erred in allowing the prosecution to withhold four witnesses named Abhoy Charan Shikari, Ramananda Biswas, Bonornali Biswas and Jagabandhu Biswas, who wore examined in the committing Court, but were not examined in the Sessions Court, or tendered for cross-examination. It is urged that they ought at least to have been tendered for cross-examination. Two of these witnesses Abhoy and Ramananda were named in the first information. In the committing Court they were declared hostile because they did not support the prosecution. The prosecution is under no obligation to examine witnesses who it has reason to believe will not speak the truth : see Empress V/s. Dhunno Kazi [1882] 8 Cal. 121. It is usual in such circumstances for the prosecution to tender such witnesses for cross- examination, and it is not clear whether this procedure was adopted or not. The defence, however, was certainly entitled to claim that privilege. Having omitted to do so they cannot be permitted to make capital of the fact that these witnesses were not cross-examined.