MADAN MOHAN BAG Vs. NABA KUMAR ADHIKARI

JUDGEMENT

(1.) Opposite party no. 1, Naba Kumar Adhikari was convicted by the learned Assistant Sessions Judge, 1st Court, Hooghly under Section 304, Part-II, Indian Penal Code and sentenced to suffer Rigorous Imprisonment for 4 years and also to pay a fine of Rs. 2,000/- in default to suffer Rigorous Imprisonment for 1 year more. Being aggrieved by the, said order of conviction and sentence opposite party no. 1 Naba Kumar Adhikari preferred an appeal being Criminal Appeal No. 18 of 1988 and the learned Sessions Judge. Hooghly who heard the said appeal allowed it, set aside the order of conviction and sentence and acquitted O.P. No.1 of the charge under Section 304, part-II, Indian Penal Code. Being aggrieved by the said order of acquittal the petitioner who was the defacto complainant moved this Court in revision and obtained the present Rule.

(2.) The prosecution case was that Bablu Bag (the deceased), brother of the petitioner and some other boys and a girl were playing by the side of the road on 7-6-1980 at about 8.00/8.30 A.M. Accused Naba Kumar Adhikari assaulted P.Ws. 5 and 7 and they fled away out of fear. The accused also detained Bablu Bag and assaulted him with fists and blows and a branch of a bamboo and kicked him on the abdomen. Bablu sustained severe injuries and was removed to Goalpota Hospital for medical treatment. Thereafter he was transferred to Howrah General Hospital but he died there on the night of 7-6-1980. The defence case was that the accused had been falsely implicated and that the deceased sustained injuries as a result of beating by his mother and by his playmates due to quarrel.

(3.) P.Ws. 2 to 5, 7 and 13 are the alleged eye-witnesses to the occurrence Accepting their testimony as true and reliable the learned Assistant Sessions Judge found the accused guilty of an offence punishable under. Section 304, Part-II, Indian Penal Code, convicted him there under and sentenced him in the manner already indicated above. The learned Sessions Judge did not, however, accept the testimony of the alleged eyewitnesses as true and reliable inasmuch as their evidence is full of inconsistencies, contradictions and embellishments. He accordingly passed an order of acquittal setting aside the order of conviction and sentence.