AMBUS SEN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole appellant Ambus Sen has preferred Jail Appeal being aggrieved by the judgment and order of conviction and sentence, passed by the learned Ist Additional Sessions Judge, Seraikella, in Sessions Trial No. 775 of 1986, whereby he has convicted the sole appellant for the offence under Section 302/34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life.

(2.) The informant Aghuni Chandra Day (PW 8) has given his fardbeyan before the officer-in-charge, Seraikella Police Station, in the Government Hospital, Seraikella, on 22.2.1986 at 10.45 p.m. that at the same night in between 7.30 and 7.45 p.m. while he was in his sweetmeat shop, Kanhai Sao, owner of the nearby betel shop, by mistake left one aluminum Mug in his shop Ajay Kumar Sen, a nearby sweet-meat shop-keeper, slapped his servant Ghontu Dey (PW 3) as to why he took his aluminum Mug. Ghontu informed that by mistake the nearby betel shop owner had left that Mug in the shop of informant. The betel shop owner also admitted that he had kept that aluminum mug by mistake, belonging to him. The elder brother of the informant Sudhir Kumar Dey and his brother-in-law Bamdeo Bin (PW 7) and the informant closed their respective shops and were going to their homes. As soon as they reached near the Neem tree, appellant Ambus Sen along with his two brothers, who had concealed themselves near that tree, came there armed with iron rod and lathi. Appellant Ambus Sen was armed with iron rod, who assaulted on the head of Sudhir Kumar Dey. Sudhir Kumar Dey sustained bleeding injury and fell down. Co-accused Ajay had lathi in his hand, who gave lathi blow on the mouth of the informant Aghuni Chandra Dey. Co-accused Birendra gave Fat blow on the mouth of the informant. Thereafter, when the informant begged pardon that it happened due to mistake, even then appellant Ambus Sen assaulted him with iron rod on his head, causing bleeding injury. Co-accused Ajay assaulted him with lathi on his right hand. He also assaulted on the leg of the informant with lathi. When Bamdeo (PW 7) tried to rescue his brother-in-law (Bahnoii Sudhir Kumar Dey, then he was also assaulted with lathi on his back by co-accused Ajay. In the meantime, having received injury, Sudhir Kumar Dey fell down and became unconscious. Thereafter, all the three accused fled away. R.K. Singh, D. Singh and others saw the alleged occurrence but fled away out of fear. After the alleged occurrence, Gopi Seth, Jagannath Mandal, Manoj, Mathura Seth, Sarpanch and others reached to the place of occurrence. At that time the Bazar people caught Birendra Sen. The Sarpanch and Manoj brought a truck of one Sardarji on which the informant, Sudhir Kumar Dey and Bamdeo were taken to hospital where the doctor declared Sudhir Kumar Dey dead.

(3.) The alleged occurrence took place only for a petty matter that a Mug belonging to the accused persons was by mistake kept in the sweet-meat shop of the informant by his servant Bhontu Dey (PW 3). The enmity was there only because the accused persons, who are full brothers, were allotted a shop to run sweet-meat, was previously allotted to the injured Sudhir and the informant. In course of trial the other two brothers of the appellant Ambus Sen, namely, Ajay Sen and Birendra Sen alias Bira absconded, which is clear from the order of the learned court below itself dated 25.8.1990 and consequently by order dated 19.11.1990 their trial was split up and the trial of the sole appellant was proceeded, as he was in custody.