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2010 DIGILAW 533 (CAL)

Babu Majhi @ Bag v. STATE OF WEST BENGAL

2010-05-14

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

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JUDGMENT Ashim Kumar Banerjee, J. 1. THE incident occurred in 1992. THE accused were charged under Section 148 as well as Section 302 read with Section 34 of the Indian Penal Code. THE accused pleaded not guilty and faced trial. 2. ULTIMATELY, the learned Judge upon appreciation of evidence, held the accused Babu Majhi and Banchar Bag guilty of the charges and the accused Bulu Mallick, Kartick Bag and Murari Bag were acquitted. The judgment was delivered on August 14, 2000. Since then both the accused were in custody. The appeals have now come up for hearing. Upon hearing Mr. Milan Mukherjee, learned counsel, appearing for the appellants and Mr. Ranjit Kumar Ghosal, learned counsel, appearing for the prosecution we find that the norms and procedure particularly laid down in Section 313 the Criminal Procedure Code were not adhered to. Mr. Mukherjee draws our attention to the recording of the examination under Section 313 of the Criminal Procedure Code of the accused Babu Majhi wherein we find that in reply to question no. 13 the answer given by the accused was kept blank by the learned Judge. The accused in reply to question no. 16 intended to adduce defence evidence. Such opportunity was not given. The accused Babu Majhi was examined on July 29, 2000. The other accused Banchar Bag was examined on August 05, 2000 where Banchar was asked whether to give any evidence to support his alibi. He said "no". The learned Judge in the order-sheet recorded that since the accused did not intend to adduce evidence the matter might be fixed for argument on August 08, 2000. The learned Judge overlooked the fact that on the earlier occasion i.e. July 29, 2000 Babu Majhi expressed his desire to adduce evidence. 3. IN our view, this is a fit case, which should go back to the Court below for being heard afresh from the list of examination of both the accused. The other three accused were already acquitted of the charges. 4. THE judgment and order of conviction as well as sentence passed against Babu Majhi and Banchar Bag is set aside. It is abundantly made clear that the order of acquittal in respect of Bulu Mallick, Kartick Bag and Murari Bag is not touched upon by us herein. The other three accused were already acquitted of the charges. 4. THE judgment and order of conviction as well as sentence passed against Babu Majhi and Banchar Bag is set aside. It is abundantly made clear that the order of acquittal in respect of Bulu Mallick, Kartick Bag and Murari Bag is not touched upon by us herein. THE Sessions Case No. 32 (I) of 2000 being Sessions Trial No. III (July) 2000 pending before the Court of the Additional District Judge and Sessions Judge, 2nd Court, Nadia is remanded back for being heard afresh from the stage of examination of both the accused being Babu Majhi and Banchar bag under Section 313 of the Code of Criminal Procedure. Both the accused are in custody since the delivery of the judgment and order dated August 18, 2000. Hence we direct the learned Additional Sessions Judge, Nadia to expedite the trial and dispose of the case within two months from the date of communication of this order. 5. MR. Mukherjee prays for bail. Such prayer is refused. In case the Court is vacant, the learned Judge, in charge of such Court must take up the trial on priority basis. 6. THE appeals are accordingly disposed of.