Asthapada Sarder vs State of West Bengal

Ashim Kumar Banerjee, J.—BACK DROP

Smt. Karuna Sarder, the victim, was married to one Robin Sardar. After the death of Robin, Karuna felt it difficult to stay in the in-law''s place because of the constant torture by her in-laws including her brother in-laws Chintamani and Asthapada. When the situation became beyond control, Karuna left her in-law''s place along with her eldest daughter Asima and then started residing with her parental family. In 1992, Asthapada and Chintamani wanted to have a negotiation for amicable settlement with Karuna. They asked the family members of Karuna to send her back along with her children.

SCENE ONE

On April 20, 1992 Jagannath Biswas (PW-1), Biswanath (PW-4), Kashinath (PW-6), Lakhman and their sister in-law Sandhya Biswas (PW-5) took Karuna and her four children with them and escorted them to her in-law''s place. At about 5:15 p.m. they reached the place of occurrence when Asthapada and Chintamani resisted Karuna from entering the house. Karuna wanted to assert her right to enter into the house claiming to be her husband''s house when Chintamani took out a sharp weapon (Katari) hidden under his dhuti and hit Karuna. Her head was chopped off, her fingers were cut into pieces and needless to say Karuna died on the spot. Jagannath tried to resist Chintamani when Asthapada attacked him with another sharp weapon (Hasua ) causing injury on his hand. According to Jagannath, both the accused threatened by them with dire consequence.

SCENE TWO

The villagers were gossiping at a tea stall being PW-2, PW-3 and PW-9. They heard a murmur that murder had been committed. Chintamani then appeared with the weapon and confessed, "we killed our younger sister in-law (Bhadra Bow)". Noor snatched the weapon from the hand of Chintamani and kept it in the nearby literacy centre wherefrom the police seized the same. Chintamani then boarded a bus for approaching the police station to surrender himself.

TRIAL

The police arrested both the brothers and charge-sheeted them. However, before the trial took place Chintamani had died. Asthapada faced the trial. Hence, we are only concerned with Asthapada in this appeal. Both the brothers were charged with the offence committed u/s 302/120A of the Indian Penal Code. The learned Court below, held Asthapada guilty of the offence and punished him by sentencing him for life u/s 302/120B as also for two months u/s 323 for injuring PW-1 with the sharp cutting weapon.

ANALYSIS OF THE JUDGMENT

i) The incident was proved by the prosecution through the eye-witnesses and independent witnesses being the villagers.

ii) The weapon was admittedly seized from the literacy centre after being snatched from the accused (Chintamani) by the villagers.

iii) The case of the defence that Karuna had left her in-law''s place along with Bhola during the lifetime of her husband was not proved. Such suggestion was put to PW-4, 5 and 6 without naming Bhola. Bhola''s name was disclosed for the first time when PW-7 was cross-examined. Hence, this part is unbelievable.

iv) The prosecution story that being invited for settlement the victim and her family members went to the place of occurrence, was proved.

v) The accused invited the brothers of the victim by offering a "rosy picture" of compromise which was believed by Karuna and her brothers.

vi) The occurrence was proved by corroboration by PW-11 and 12 being the sons of the victim. The prosecution story could not be shaken by prolonged cross-examination of PW-1, 4, 5, 6, 7, 11 and 12.

vii) Local witnesses being the villagers being PW-2, 3 and 4 supported the case of the prosecution.

viii) The suggestion given by the defence that the accused were trapped to hide the "real miscreants"belonging to a particular political party without naming the "real miscreants" does not have any consequence.

ix) Since the evidence of PW-2 and 3 did not counteract that both Chintamani and Asthapada wanted to make a confession such evidence was not trustworthy.

x) Presence of Asthapada before the local independent witnesses immediately after the occurrence was established through PW-2, PW-3 kept the weapon in the literacy camp. The defence did not confront such statement, rather it got support from the evidence of the Investigating Officer.

xi) The fact of surrender was corroborated by the Investigating Officer being PW-14. Alleged illicit relationship between Adhir and Karuna set up by the defence could not be proved, on the contrary it came out in evidence that Adhir, at one point of time made indecent proposal to Karuna and Karuna, in turn, informed Robin, her husband and Robin assaulted Adhir on such issue which resulted in a criminal case.

xii) In reply to the questions asked u/s 313 of the Criminal Procedure Code the accused denied of any resistance given to the victim from entering into the house. Asthapada admitted that he was in the house at the time of occurrence. How Karuna received fatal injury Asthapada should have explained. He, however, put different suggestions on the issue of assassination of Karuna. Asthapada assaulted PW-1 on his hand aiming his neck. PW-1 received serious bleeding injuries on his hand. Other prosecution witnesses supported such prosecution story. Medical treatment rendered to PW-1 because of the injury caused by Asthapada was however, not proved through any documentary evidence although the OPD injury ticket was filed in the record of the sessions case.

xiii) Both the brothers hatched controversy and invited the victim''s family for the settlement. On the pretext of settlement they called the victim and murdered her. Asthapada was all along present when Chintamani murdered Karuna.

xiv) Asthapada was held guilty u/s 302/120B and 323 of the Indian Penal Code.

The learned Judge of the Court below held Asthapada guilty of the offence and sentenced him for life.

APPEAL Being aggrieved by the judgment and order of the Court below, Asthapada filed the instant appeal.

APPELLANT''S CONTENTION BEFORE US Learned Counsel appearing for the Asthapada, the appellant above named contended as follows:

i) The brothers of the victim claimed to be eyewitness to the incident. They were interested witnesses. Unless their evidence was corroborated by any independent witness it would not be safe to hold the accused guilty of the offence solely based upon such evidence.

ii) The villagers witnesses were post occurrence witnesses and could not be of any assistance to prove the case of the prosecution to hold the appellant guilty of the offence.

iii) There are material anomalies in evidence specially when at least two eyewitnesses including PW-7 deposed that there were at least 50/60 persons present at the place of occurrence at the time of incident. Those persons were not examined.

iv) The learned Judge of the Court below relied on the extra judicial confession alleged to have been made by Chintamani which could not be the sole factor to hold the accused guilty of the offence. In any event, there had been no utterance by Asthapada, at least not claimed by villagers witnesses specifically.

v) Unless the case of criminal conspiracy was proved Asthapada could not be held guilty as admittedly nothing came out in evidence to prove that Asthapada helped Chintamani to kill the victim or that Asthapada injured PW-1.

vi) The police could not seize the alleged Hasua used by Asthapada.

vii) The learned Judge of the Court below relied on the circumstantial evidence to implicate Asthapada without appreciating that there had been no complete chain to come to a definite conclusion that Asthapada was involved in the crime.

PRECIDENTS CITED

To support his contention on the issue of extra judicial confession learned Counsel cited this Court''s judgment in the case of Motilal Tudu v. State of West Bengal reported in 2006 2 CHCN 722. On the issue of criminal conspiracy, learned Counsel relied on the Apex Court decision in the case of Baldev Singh v. State of Punjab reported in 2009 4 SCC 564.

On the issue of circumstantial evidence, learned Counsel relied on two Apex Court decisions in the case of Sunny Kapoor v. State (UT of Chandigarh) reported in 2006, Volume-III, Supreme Court Cases (Criminal), Page-522 and Mula Devi and Anr. v. State of Uttarakhand reported in 2009 II Scc (Criminal) 854.

PROSECUTION CONTENTION BEFORE US

9.1 Opposing the appeal Mr. Subhasish Pachhal, learned Counsel appearing for the State contended that the murder was proved as would be ex facie apparent on the face of the evidence. However, since Chintamani is dead we need not bother ourselves on that issue. The prosecution through the eyewitnesses being the relatives of the victim as well as villagers being post occurrence witnesses also proved the role of Asthapada, according to Mr. Pachhal. Mr. Pachhal contended that two brothers conspired. They called the victim on the pretext of settlement and then resisted her from entering into the house and killed her in presence of the eyewitnesses.

9.2 To support criminal conspiracy Mr. Pachhal pointed out four salient features which are as follows:

i) Both the accused called the victim for a settlement.

ii) Both resisted her from entering into the house.

iii) Both threatened the eyewitnesses with dire consequence as would appear from the evidence of PW-1and PW-5.

9.3 Mr. Pachhal lastly contended that the Court below upon appreciation of evidence rightly held Asthapada guilty of the offence and sentenced him accordingly which did not deserve any interference by this Court.

LAW ON THE SUBJECT

10.1 To appreciate the subject controversy let me first discuss the law on this subject.

10.2 Both the accused were charged for committing the offence u/s 302 and 120-B and 323 of the Indian Penal Code. On analysis of facts the homicidal death was proved and there could be no second opinion on the said issue. Chintamani murdered the victim as would appear from the evidence. I, however, do not dilate on such issue as Chintamani could not face the trial as he had died before the trial took place. The Court below was only concerned with Asthapada so are we. From the evidence of the prosecution it is clear that Asthapada did not assault the victim. It was not the case of the prosecution as well.

10.3 To implicate Asthapada I have to rope in Section 34 and Section 120-A and B which are quoted below:

Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

120-A. Definition of criminal conspiracy. - When two or more persons agree to do, or cause to be done,-

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation. - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

120-B. Punishment of criminal conspiracy. -

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

Classification of Offence. - The offence under this section, according as the offence which is the object of conspiracy is cognizable or non-cognizable and according as the offence which is the object of conspiracy is bailable or non-bailable and triable by Court by which abetment of offence which is the object of conspiracy is triable. In any other criminal conspiracy, it is non- cognizable, bailable and triable by Magistrate of the first class.

10.4 To have a clear understanding of Section 120A and 120B I may require the assistance of three Apex Court decisions which unfortunately were not cited at the Bar.

i) Sharad Birdhichand Sarda Vs. State of Maharashtra,

Paragraph 152 and 153 of this decision being relevant are quoted below:

152:A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made:

certainly, it is a primary principle that the accused must be andnot merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused. That is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

153: These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

ii) Damodar Vs. State of Rajasthan, -

The Apex Court in this case observed that a conspiracy can be proved even by circumstantial evidence and lack of direct evidence has no consequence. The Apex Court further observed that overt act is inessential when the conspiracy is to commit any punishable offence. The most important ingredient of criminal conspiracy is that there must be an agreement between two or more persons to do an illegal act. Such conspiracy can be proved through evidence as to the transmission of thoughts sharing the unlawful act and continues to subsist till it is executed or rescinded or frustrated by choice or necessity.

iii) K. Hashim Vs. State of Tamil Nadu, -

The word "corroboration" means not mere evidence tending to confirm other evidence. First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.

10.4.1 On a sum total my understanding of the law is that the conspiracy between two or more persons could only be proved when the co-conspirator had a role in the matter of conspiracy which has come out in evidence. Express agreement need not be proved in case various links in the chain of evidence otherwise satisfactorily prove that there had been a conspiracy between one accused and the other.

MY APPRECIATION OF EVIDENCE APPLYING THE LAW

11.1 On a combined reading of the aforesaid provisions we have to find out whether there had been an earlier plan to kill the victim or the victim was killed on a sudden decision of Chintamani or it was an accident. To find out an answer to these questions we have to closely examine the evidence relating to the role of the accused during the incident.

11.2 On a close analysis I did not get any evidence with regard to hatching of plan to rope in Section 120-A and B. The relatives of the victim being the eyewitnesses consistently stated that the accused told them to send the victim and her children for a settlement. Nothing came out in evidence conclusively, how and when such proposal was sent? Who gave the proposal? I unhesitatingly observe that the evidence did not and/or could not give any conclusive answer to the above questions. It might be, Chintamani gave the proposal and Asthapada did not object or the proposal was given jointly. Even if it is proved that it was a joint proposal our problem would not be solved so long we are not convinced that such proposal was not an honest proposal but a pretext to bring the victim to the place of occurrence so that they could get opportunity to assault her. Such evidence, in my view, is conspicuously absent. Even if we give credence to the evidence of the relatives of the victim and hold that it was a pretext to invite them for a settlement we cannot be definite on the role of Asthapada to rope him in u/s 120-A and B. Section 34 has not been charged as would appear from the chargesheet.

11.3 Section 120-A and B read together would mean a conspiracy between two or more persons to commit a crime meaning thereby, it was a prelude to the actual commission of the crime. However, the offence is not complete unless the actual crime is committed. I am not sure from the evidence that there had been such a conspiracy between Chintamani and Asthapada as a result of which the murder was committed.

11.4 There is one more salient feature which I cannot possibly overlook. To decide a criminal case for holding someone guilty of the offence the Court must try to read the mind of the accused so far it is possible to find out the probabilities and then compare such probabilities with the evidence to come to a definite conclusion that it was the accused and the accused only who had committed the crime and there was no iota of doubt on that score.

11.5 If there had been a conspiracy between Chintamani and Asthapada the murder would have been a cold blooded one. The description of the murder committed by Chintamani so narrated by the eyewitnesses would only show the hatred Chintamani had, at that spur of the time against the victim. A man loves himself the most. Such manifestation of hatred by committing the murder could not be done by any accused in broad daylight in a pre-planned manner and that too by keeping eye witnesses which would ultimately result his conviction. I cannot ignore such aspect.

11.6 Brief analysis of the evidence and the complaint reveals as follows:

i) In the complaint the PW-1 stated before the police that while he was returning home after lodging the complaint with the Panchayat he came across Chintamani near Jhaligachhi Bridge when Chintamani proposed to sort out the problem amicably and asked the complainant to bring the victim. The complaint did not speak of Asthapada being present at the time of giving of such proposal.

The complaint also reveals that Chintamani and Asthapada were present at the place of occurrence when both of them resisted Karuna to enter into the house. When Chintamani attacked Karuna the complainant tried to resist him when Asthapada assaulted him with the weapon in his hand causing left- hand injury to the complainant.

ii) Complainant being PW-1 in his evidence improved his statement by saying that both Asthapada and Chintamani gave the proposal for settlement. Both Asthapada and Chintamani threatened them by saying that they would not allow any one to go back.

iii) Such evidence of Asthapada was corroborated to a substantial extent by PW-4, 5, 6, 7, 11 and 12 all relatives of the victim. While making such corroboration there had been some anomaly with regard to the vanue where the proposal was given and the time. PW-6 stated that in the morning of April 20, 1992 Jagannath was going towards market. Asthapada and Chintamani met him and asked him to send Karuna to their house and they would not create any disturbance. He also stated in cross-examination that on that day Jagannath and Karuna went to Panchayat Office at 8:00 P.M. He also stated that he did not state to the police that after going to Panchayat Office when they were proceeding towards the house of Karuna they met the accused at the approach of the bridge. PW-7 stated that the proposal was given at Jhaligachhi More at about 10:00 A.M. PW-7 also stated that Asthapada asked Chintamani to catch hold of them.

iv) PW-7 deposed that twenty to twenty-five people gathered at the time of incident. None of them was examined. PW-1 also stated that there were at least four to six huts at the place of occurrence beside one grocery shop. He also stated that about four hundred to five hundred villagers assembled on hearing their hue and cry.

v) The villagers witnesses being PW-2, 3, 9 and 10 were the post occurrence witnesses. Most of them stated about extra-judicial confession made by Chintamani. They did not name Asthapada. According to PW-9 Chintamani voluntarily stated before them that he murdered Bhadra Bow. In cross- examination he stated, "I have not seen Asthapada at the time on that place of Jhaligachhi More. PW-2 stated, Chintamani ran and came in front of us along with a Dao and subsequent thereto Asthapada also came hurriedly at that place. Accused Chintamani confessed that they had killed his Bhadra Bow. He also stated, Chintamani alone boarded a bus for going to the police station to surrender himself. In cross-examination PW-2 stated Chintamani came along with weapon and thereafter Asthapada also came at that spot. PW-3 corroborated PW-2 by saying that Chintamani voluntarily stated that he has murdered.

None of the four village witnesses deposed anything against Asthapada, save and except, he subsequently appeared before them. It is also not clear from the evidence whether Asthapada was at all present when the confession was made by Chintamani.

MY ULTIMATE FINDING

12.1 The murder was proved. It was also an admitted fact that Chintamani committed the murder. It is true that Asthapada did not try to resist Chintamani from committing the crime. None of the persons present there at the time of occurrence other than the relatives of the victim was examined either by the police or at the time of trial. Out of four villagers three villagers corroborated each other to support the extra-judicial confession made by Chintamani. They also consistently stated that Asthapada subsequently came to the spot when Chintamani made the extra-judicial confession before them. The other village witness being PW 10 did not say anything.

12.2 With regard to the hatching of plan being a part of the conspiracy we did not get any plausible evidence to rope in Asthapada. All the eyewitnesses being the relatives of the victim corroborated each other to the extent that proposal was given to settle the dispute amicably. One says that Chintamani gave proposal when they were approaching the bridge while coming after lodging complaint at the Panchayat. Another one says that it was made at Jhaligachhi More. Another one says that proposal was given when Jagannath was coming out from the market. This piece of evidence in my view does not make the chain complete to hold conclusively that Asthapada was a part of the criminal conspiracy he had with Chintamani hatching a plan to kill Karuna.

12.3 Assuming Asthapada knew about the proposal for settlement it does not necessarily prove that he hatched a conspiracy with Chintamani to kill Karuna.

12.4 Cloud has cast in my mind. With my best effort I could not remove. I wish to give Asthapada a benefit of doubt.

12.5 The murder was brutal. It manifests deep hatred the accused Chintamani had as against Karuna. The assault made by Asthapada was not proved. The alleged injury of PW 1 could not be proved in absence of any medical evidence. Political rivalry between the two groups as alleged was also not proved. It would not be safe to support the conviction of Asthapada.

12.6 I know that this judgment might shock the victim''s family. Her soul may be unrest. My apology to the departed soul. Despite my best efforts I could not convince myself to approve the conviction.

RESULT

The appeal should succeed and should be allowed.

Asthapada should be acquitted from the charges brought against him. Bail Bond should be cancelled.

I have gone through the well-versed judgment and order of my esteemed brother. However, despite my best efforts, I could not persuade myself to agree with His Lordship. Hence, I record my reasons for dissent.

This appeal is directed against the judgment of conviction and sentence passed by the learned Additional Sessions Judge, 1st Court, Barasat, North 24 Parganas in Sessions Trial No. 2(7) of 1997 arising out of Sessions Case No. 17(11) of 1994 sentencing thereby the appellant to suffer imprisonment for life u/s 302/120B of the Indian Penal Code and also to suffer two months S.I. u/s 323 of the Indian Penal Code with the direction that both the sentences run concurrently.

One Jagannath Sardar lodged complaint with the P.S. Rajarhat alleging that his third sister Karuna was married with Rabin Sardar of Jhaligachi who died about three years ago. Since the death of Karuna''s husband, the brothers of Rabin Sardar i.e. Chintamoni Sardar and Astopada Sardar started committing torture upon Karuna in various ways. Being unable to bear it any more, Karuna came back to her paternal house with her daughter Ashima about a month and a half ago. The informant Jagannath and his brothers tried to persuade Astopada and Chintamoni, but, they did not agree to the return of Karuna to her husband''s house. On 20.4.1992 informant informed Chandpur Panchayat Office about the disturbance. When they were coming back through Jhaligachi village, the informant came across Chintamoni Sardar near Jhaligachi Bridge. Chintamoni told him that there was no use of going to the Panchayat and Police and told him to bring back his sister and they would settle the matter amicably. Trusting upon their words, Jagannath and his two brothers namely Kalinath Biswas and Biswanath Biswas and brother''s wife Sandhya Biswas, cousin Laxman Biswas along with Karuna and Karuna''s elder daughter named Ashima went to Jhaligachi at about 5.30 P.M. on 20.4.1992. Chintamoni Sardar and Astopada Sardar told them not to enter the house to which Karuna told that she would live in that house being the house of her husband and father-in-law. Thereafter, Chintamoni drew a ''daw'' which was concealed under his clothings and with that assaulted Karuna cutting her throat. Karuna collapsed to the ground and fell into the ditch. Then Chintamoni got down into the ditch and assaulted 3-4 times and Karuna inatanteneously died on the spot. As Jagannath went to resist, Astopada assaulted Jagannath with the ''daw'' in the left hand causing bleading injuty. Being frightened, the informant and others escaped and narrated the incident to the people about the incident. It has been alleged that Chintamoni and Astopada killed Karuna in a pre-planned way. After receipt of the complaint, Rajarhat P.S. case No. 115 dated 20.4.1992 was started. After completion of investigation charge sheet was submitted.

Charge was framed against Astopada Sardar u/s 324 of the Indian Penal Code and u/s 302/120B of the Indian Penal Code against Chintamoni Sardar and Astopada Sardar. The charges were framed on 22nd July, 1997 and Chintamoni Sardar died as per death certificate dated 08.2.1999 as mentioned in Order No. 44 dated 4.9.2000 of the learned Trial Judge.

The learned Trial Judge after considering the materials on record passed the impugned judgment of conviction and sentence holding that the accused persons proposed to settle the disputes amicably which was relied upon by the brothers of Karuna. The learned Judge further held that there was nothing on record to suggest that accused Astopada raised any protest against the confessional statement of accused Chintamoni, since deceased, in which Astopada was also implicated. The learned Judge held that from the evidence of P.W. 2 and P.W. 3 it would appear that the ''daw'', the offending weapon, was kept in the Literacy Camp Office and the same was seized by the police under seizure list (Exibit - 2). It was held by the learned Judge that Karuna was murdered by Chintamoni with the offending weapon (mat. Ext. 1) in presence of accused Astopada and Astopada in course of the incident assaulted P.W. 1 with another ''daw'' or ''hasua'' aiming at the neck, but, P.W. 1 in an attempt to save himself sustained bleeding injury on his hand. The learned Judge observed that Astopada was one of the conspirators for committing the gruesome murder of Karuna.

The learned Counsel appearing on behalf of the appellant submits that the witnesses regarding the occurrence examined by the prosecution are related to the family of the deceased and no independent witness was examined, although, it would appear from the evidence of the P.W.s that about 50-60 persons were present at the time of the alleged occurrence. It is contended that the seizure is doubtful and as regards the injury of P.W. 1 no doctor of the PHC was examined to prove the injury report. It is submitted that the extra judicial confession as told by P.W. 2 Nurul Islam cannot be believed so far it relates to the present appellant Astopada Sardar. It is submitted that when the extra judicial confession was made by Chintamoni, Astopada thereafter, only came on the spot. It is contended that before relying on the extra judicial confession, the Court has to see that the confession was made to a person upon whom the maker had confidence. The learned Counsel submits that the case against Astopada has not been proved beyond reasonable doubt and the appellant is entitled to get benefit of doubt. The learned Counsel for the appellant has referred to and submitted the decisions reported in (2009)(2) SCC (Cri) 854 [Mula Devi and Anr. v. State of Uttarakhand]; (2006) 3 SCC (Cri) 522 [Sunny Kapoor v. State (UT of Chandigarh]; 2006(2) CHN 722, Motilal Tudu v. State of West Bengal; Baldev Singh Vs. State of Punjab,

Learned Counsel appearing on behalf of the State submits that there was conspiracy between Chintamoni and Astopada and in furtherance thereof the proposal was made that they would settle the disputes. It is submitted that relying on that proposal, the victim along with his brothers, daughter and brother''s wife came to the house of the appellant. It is submitted that there was sharing of mind between both the accused persons and at the time of occurrence the present appellant resisted P.W. 1 and caused injury on his person. It is also submitted that at the time of occurrence there was utterances by both Chintamoni and Astopada that nobody will be allowed to go. It is submitted that the conduct of the present appellant clearly shows that he was one of the conspirators and the learned Trial Judge was justified in passing the sentence by the impugned judgment.

It is in the F.I.R. that after the death of the husband of Karuna, she was subjected to torture by Chintamoni and Astopada in her matrimonial home for which Karuna had to leave her matrimonial home. It is in the F.I.R. that the informant Jagannath i.e. the brother of Karuna went to Chandpur Panchayat to ventilate their grievance and while they were coming back, Jagannath met Chintamoni near Jhaligachi Bridge who proposed to settle the disputes amicably and requested Jagannath to send back Karuna. It is also in the F.I.R. that relying on such words of Chintamoni, Jagannath, his brothers namely Kalinath Biswas, Biswanath Biswas, Biswanath''s wife Sandhya Biswas, cousin Laxman and Karuna and her eldest daughter Ashima went to the house of Chintamoni and Astopada on 20.4.1992 at about 5.30 P.M. It is also in the F.I.R. that Chintamoni and Astopada both prevented them from entering the house and thereafter Chintamoni dealt blows with ''daw'' causing the death of Karuna. It is in the F.I.R. that when Jagannath tried to resist Chintamoni, Astopada assaulted him by a ''daw'' causing bleeding injury.

P.W. 1 is the informant who has stated that Astopada and Chintamoni informed them to negotiate in the matter for settlement with Karuna and also asked them to send back Karuna and her children to their house. In the cross-examination P.W. 1 has stated that Karuna came to their house along with Ashima to save themselves from the torture committed by the members of her in-law''s house. It is in the evidence of P.W. 1 that Astopada held another sharp cutting ''daw'' and tried to assault him on his neck, but, Jagannath anyhow tried to resist the same by his hand and he received such injury in his left hand sustaining bleeding injury. It is in the evidence of P.W. 1 that both the accused persons Astopada and Chintamoni told that no one would be allowed to go. P.W. 4 Biswanath Biswas, P.W. 5 Sandhya Biswas, wife of P.W. 4, P.W. 6 Kasinath Biswas, P.W. 7 Ashima Biswas have categorically stated that both Chintamoni and Astopada sent information for sending back Karuna to their house. So from the evidence of the P.Ws, it is found that there was proposal from the side of the Astopada and Chintamoni for settling their disputes amicably and it is also proved that relying on such proposal Karuna along with her brothers, brother''s wife and daughter came to the house of the appellant. Not only that Astopada, that is, the present appellant was very much present being armed with a sharp cutting weapon at the time of the occurrence and dealt a blow aiming at the neck of P.W. 1, but, ultimately striking P.W. 1 in his hand.

It is in the evidence of P.W. 5 Sandhya Biswas wife of P.W. 4 that Karuna died instantly having sustained injuries and after the same, accused Astopada said that nobody will be allowed to remain alive and everybody will be killed. It is also in the evidence of P.W. 5 Sandhya Biswas, P.W. 6 Kasinath Biswas that both the accused persons also chased Karuna''s daughter Ashima Sarkar. Ashima Sarkar, the daughter of the deceased has been examined as P.W. 7. She has corroborated P.W. 1.

P.W. 2, a man of Jhaligachi village, has been examined who has stated that Chintamoni ran away and came in front of them along with a ''daw'' and subsequent thereto Astopada also came hurriedly at that place and accused Chintamoni said that they killed the brother''s wife and that the ''daw'' was stained with blood till then. It is the categorical statement of P.W. 2 that both the accused confessed the same in front of them and wanted to mean that they killed Karuna wife of Rabin. It is in the evidence of P.W. 2 that Astopada and Chintamoni both wanted to surrender before the police along with the weapon. It is in the evidence of P.W. 2 Nur Islam that he and Aftab kept the said ''daw'' in the Literacy Camp Office and a mob of 100-150 local people instantly rushed to the house of the accused persons in the village.

Aftab Uddin has been examined as P.W. 3. He has stated that he along with Noor Islam, Asraf Uddin were sitting in a tea stall at Jhaligachi More when accused Chintamoni came there holding a ''daw'' and said that he committed murder of his ''Bhadra Bow'' Karuna with the said ''daw'' and also expressed his intention to surrender himself before the police. It is also in his evidence that he anyhow managed to collect the said ''daw'' from him as a safety measure and kept the same at a Literacy Camp near the said place. It is in evidence that he said ''daw'' was seized from the Camp Office under a seizure list.

From the evidence of P.W. 2 it is clear that while the extra judicial confession was made by Chintamoni to a known villager in the tea stall, Astopada was very much present there. It is also in evidence of P.W. 2 that such disclosure was also made by the present appellant Astopada and both of them expressed their intention to surrender. Apart from the extra judicial confession, there is cogent and corroborating ocular evidence pointing at the guilt of the appellant.

From the evidence on record it is clear that the present appellant along with Chintamoni had a pre-arranged plan and in execution thereof, the intimation or proposal was sent through P.W. 1 for settling the disputes amicably with Karuna. From the evidence as discussed above, it is clear that relying on that proposal Karuna along with his brothers and other members of her paternal house came to the house of the appellant. The visit of Karuna along with the members of her father''s house, undoubtedly goes to show that there was such proposal from the side of the accused persons, otherwise, they would not have come to the house of the accused persons, especially, when there is evidence of P.W. 1 that Karuna left her matrimonial home being subjected to torture.

From the evidence it is also clear that at the time of infliction of assault by Chintamoni upon Karuna P.W. 1, Jagannath tried to resist Chintamoni and at that point of time Astopada, the present appellant, being armed with sharp cutting weapon prevented Jagannath and dealt a blow by means of that weapon which ultimately struck the hand of P.W. 1. On this point the learned Counsel for the appellant has submitted that such injury of P.W. 1 has not been proved by the doctor of the P.H.C.. P.W. 1 has stated in his evidence that police sent him to Reckjuani Hospital at Rajarhat where he was treated and he identified the O.P.D. ticket issued by the said P.H.C. which he subsequently handed over to the police. Such P.H.C. ticket was marked ''X'' for identification. Although, the injury of P.W. 1 was not proved by the doctor of the P.H.C., it is clear from the evidence of P.W. 1 that he was treated in the P.H.C. The other P.Ws. have also stated that P.W. 1 sustained injury in his hand. The very fact that Astopada was present with sharp cutting injury at the time of infliction of assault by Chintamoni upon Karuna and when P.W. 1 tried to resist Chintamoni, Astopada assaulted P.W. 1, goes to show that Astopada shared the same intention with Chintamoni and there was prior sharing of minds on the point of killing Karuna and that is why the proposal or intimation was sent through P.W. 1 to take back Karuna for settling their disputes amicably. It is to be borne in mind that conspiracy is to be considered having regard to the attending circumstances. It is clear from the evidence on record that at the time of the occurrence, Astopada was present with sharp cutting weapon. In other words, present appellant was one of the conspirators having the same intention with Chintamoni. There was the existence of concerted intention or a common design. It has also been proved by cogent evidence that the appellant participated in the design and it was executed by overt acts. The decisions cited by the learned Counsel for the appellant would not come in support of his contentions in view of the facts and circumstances of the instant case.

Having heard the learned Counsel for the parties and after considering the materials on record, I find that the learned Trial Judge was justified in holding the present appellant guilty and passing the sentence under the impugned judgment. There is no ground to interfere with the findings of the learned Court below.

There is no merit in this appeal and the same should be dismissed.

Since we could not be ad-idem on the ultimate decision let this matter be placed before the Hon''ble Chief Justice for placing the matter before another Hon''ble Judge to be nominated by His Lordship for a final decision.