The main legal point established in the judgment is the confirmation of the death sentence for murder under Section 302 IPC and the acquittal of the charge under Section 212 IPC due to insufficient evidence of knowledge of the offense.

JUDGMENT

Bibhas Ranjan De, J. - Brief facts/ Background:

1. Learned Additional Sessions Judge, 4th Court, Beherumpore in the District of Murshidabad conducted Sessions Trial No. 19/08/2005 and convicted one Alauddin Sekh under Section 212 of the Indian Penal Code (for short IPC) and sentence to suffer imprisonment for five (5) years and to pay a fine of Rs. 10,000/- with default sentence to suffer imprisonment for five (5) years. Learned Judge further convicted Saju Sekh @ Sahajur and sentenced him to death for the offence punishable under Section 302 IPC. An order of death sentence of Saju Sekh which gave rise to death reference case no. 1 of 2021since under provision of Code of Criminal Procedure Code (for short Cr.P.C), death sentence recorded by a Judge is subject to confirmation by this Court. Saju Sekh @ Sahajur and Alauddin Sekh also preferred two separate appeal against their respective order of conviction and sentence as Criminal Appeal No. 123 of 2021 and Criminal Appeal No. 197 of 2021.

2. By this judgment we propose to dispose of the death reference as well as two criminal appeals preferred by the appellants. In the Sessions Trial No. 19/2008/2005 the law was put into motion by a written complaint lodged by one Foreman, Hari Prasad Singh, attached to Hajarduwari, Murshidabad (PW-1) complaining inter alia that on 09.07.2002 appellant Saju Sekh, one casual labour, came to their office at 08:00 a.m. to 08:30 a.m. for work. When Prabir Kumar Saha, (conservation asst., Gr. I) refused to absorb him due to official problems, in the result he became angry and threatened to kill him. Thereafter, he suddenly attacked Prabir Kumar Saha by one Iron Sickle and brutally chopped on various parts of his body. At that time one Susanta Mukherjee (Monument Attendant) (PW-5) and Sri Shyamdapada Kundu (Monument Attendant) (PW-6) were present over there and tried resist Saju Sk. but failed.

3. On receipt of the written complaint addressed to the Officer-in- Charge, Murshidabad Police Station, Lalbagh, Murshidabad Police case being no. 72/ 2002 of 09.07.2002 under Section 302 IPC was started at Murshidabad Police Station. S.I Nilanjan Roy (PW-14) attached to Murshidabad Police Station at the relevant point of time took up investigation of the case. He visited place of occurrence and prepared rough sketch map with index (exhibit-8). He prepared seizure list (exhibit -3/2) in respect of one blood stained wheel chair, two blood stained cushion, some blood stained greenish paper file, one pair of rubber sandal, blood stained coloured rubber paper and a pair of blood stained rubber shoe from the office room of Prabir Kumar Saha at Hazarduary Palace Museum, Lalbagh, in presence of witnesses. He collected dead body challans and inquest report in connection with Murshidabad P.S U.D Case No. 59/2002. He examined available witnesses and recorded their statement under Section 161 Cr.P.C. Statement of two witnesses under Section 161 Cr.P.C were recorded. He arrested accused Alaudduin Sk. from Kaliganj PS Nabagram for harbouring accused Saju Sk. He made a prayer for adding Section 212 IPC against accused Alauddian Sk. He arrested accused Saju Sk. From village Elahiganj under PS Murshidabad, under custody memo (exhibit-10). On his prayer, statement of Saju Sk. under Section 164 Cr.P.C (exhibit-11) was recorded by the Learned Magistrate. On completion of investigation, Investigating Officer submitted charge sheet against appellants under Section 302/212 IPC.

4. Learned Sub-Divisional Judicial Magistrate, Lalbagh, by his order dated 27.08.2002 committed the case to the Learned Sessions Judge, Murshidabad, who then transferred the case to the Court of Learned Additional Sessions Judge, 4th Court, Murshidabad, learned Judge framed charge against appellants Saju Sk. under Section 302 of the IPC and separate charge against accused Alauddin Sk. under Section 212 of the IPC.

Contents of the charge was read over and explained to the appellants/ accused who pleaded n