EMPEROR Vs. DINBANDHU OORIYA

JUDGEMENT

(1.) This is an appeal by Dinabandhu Uriya who has been convicted of murder under Section 302, I.P.C. by the Additional Sessions Judge of the 24 Parganas in agreement with the unanimous verdict of nine gentlemen of the jury for causing the death of a Brahmin youth named Kartik Chunder Mukerjee, aged about 25/26 years. He has also been convicted under Section 326, I.P.C. of causing grievous hurt by a sharp cutting weapon on one Rajabala a woman of the suburbs of Behala. The learned Additional Sessions Judge has passed the sentence of death on -him on the charge under Section 302. He has further sentenced him to rigorous imprisonment for a period of four years under Section 326 which is to be operative until the sentence of death passed by him is confirmed by this Court. The-matter has also come before us by way of reference by the Additional Sessions; Judge under Section 374, Criminal P.C.

(2.) On behalf of the prisoner it does not appear that any very serious criticizm has been made of the summing up by the learned Sessions Judge. The only criticism which is made is that the learned Judge should have put to the jury the fact that during the course of the investigation by one of the police officers it was disclosed that the accused was at the shop of one Sindhu Pashi at Barisa during the day on the date of the occurrence before coming to the place where he was arrested and it is said that the learned Sessions Judge ought to have directed the jury to draw an unfavourable inference against the case for the Crown from this very important circumstance. It seems to me that it was not the duty of the Crown to put this witness before the Court seeing that the witness could, really have proved the alibi of the accused. It was really for the accused person to call him as a witness for the defence in support of plea of any alibi which he might have taken but has not taken. It seems to me after considering and reading the summing up by the Sessions Judge, that the summing up was a most careful one. Every point was put before the jury with great lucidity and there was really ample evidence upon which the jury could come to the conclusion at which they arrived with reference to the two defences which were suggested during the course of the argument before the lower Court. One theory put forward was that the deceased Kartic Mukherjee himself cut a sindh and effected an entrance into Rajabla a ghar and eventually engaged himself in a scuffle with her and that these two persons managed to fight with a cutting weapon and cut each other and in the course of the fight Kartic got the worse of it and met with his death. It must be said, in fairness to the learned advocate for the appellant, that he has not put forward or pressed this theory before this Court.

(3.) The other theory put forward by the defence in the course of cross-examination of the prosecution witnesses was that there was no light in Rajabala's gharator about the time of the occurrence and that it was probable that while Kartic, the deceased, and Rajabala engaged themselves in sexual intercourse the light might have been put out and eventually they might have fallen asleep and that while they were so asleep some unknown enemy might have effected an entrance into the room through the sindh and injured both the man and the woman. It is said that the woman Rajabala having failed to recognise the actual assailant who escaped on her cries took it into her head to mention the name of the accused out of sheer grudge. It is further suggested that the name of Dinabandhu occurred to Rajabala not immediately after the time of the occurrence but after she had held a consultation with the other unfortunate woman living in the same house and other persons friendly to her in the locality. No evidence has been put forward in support of this defence and the learned Judge did mention to the jury this possible defence which was suggested in the cross-examination of the prosecution witnesses and I shall show presently from the examination of the evidence that this defence is baseless.