RAJKISHORE SHAW @ NANDU Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgment and order dated 18.5.2012 passed by the learned Additional District and Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta in Sessions Trial No.3 (1) of 2003 arising out of Sessions Case No.64 of 2000 convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and directing them to suffer imprisonment for life and to pay a fine of Rs.3,000/- each in default to suffer simple imprisonment for one year more each.

(2.) Prosecution case came to be registered on the basis of a statement of Jasodhar Yadav, P.W.1 recorded by S.I., S. Ahamed, P.W.6 resulting in registration of Burtolla P.S. Case No.253 dated 17.9.1988 under Sections 302/34 of the Indian Penal Code against the accused persons. In the course of investigation of the case particularly in the light of the opinion given by Post Mortem Doctor, P.W.5, Dr. Rabindra Basu that the injuries suffered by the victim could not have been caused by the blunt side of the vojali and are consistent with that of a person who has been run over by a heavy moving vehicle. Police report praying for discharge of the accused persons was filed before the Court of the learned Additional Chief Metropolitan Magistrate, Calcutta. P.W.1 submitted a protest petition of the said report and subsequently filed a petition of complaint. Learned Magistrate took cognizance on the petition of complaint and examined P.W.1 on solemn affirmation under Section 200 of the Code of Criminal Procedure. In the course of enquiry under Section 202 of the Code of Criminal Procedure, Dr. Rabindra Basu and other witnesses were also examined and process was issued against the appellants. Case was committed to the Court of Sessions and transferred to the Court of the learned Additional District and Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta for trial and disposal. Charge was framed against the appellants under Sections 302/34 of the Indian Penal Code. Appellants pleaded not guilty and claimed to be tried. Prosecution examined six witnesses in support of its case. In conclusion of trial, learned trial judge by judgment and order dated 18.5. 2012 convicted and sentenced the appellants, as aforesaid.

(3.) Mr. Basu, learned Senior Counsel with Mr. Chatterjee appearing for the appellants argued that the prosecution case suffers from various contradictions, inconsistencies and/or embellishments. It is the consistent evidence on record that the appellant Rajkishore Shaw @ Nandu assaulted the victim on the head with blunt side of the vojali. P.W.5, Post Mortem Doctor has unequivocally ruled out the possibility of any injury on the victim being caused by blunt side of vojali. In his earlier statement to the police, P.W.1 did not speak of assault on the victim by appellants Mantu Shaw and Bhola Shaw with brickbats. Subsequently, he developed the prosecution case. The aforesaid variation in the prosecution case at the latter stage has been made to reconcile with the nature of injuries found on the victim as per post mortem report. Hence, the prosecution witnesses do not appear to be truthful and the conviction ought to be set aside.