SONA ACHARJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the judgement and order dated 25.4.1998 passed by the learned Additional Sessions Judge, 1st Court at Balurghat, District West Dinajpur convicting the appellants/accused under section 304(Part-II)/34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 2000/-, in default, to suffer rigorous imprisonment for one year more. It was further directed that in case fine if paid, 50% of the same be given to the widow of the deceased as compensation. The judgement and sentence was passed in Sessions case no. 45 of 1987/Sessions Trial No. 27 of 1987. On 1.3.1986 at 21.45 hours one FIR was lodged with the Kumarjang police station by Monoranjan Sarkar alleging therein that on that date while he was cutting fodder for his cattle, his brother-in-law Nayan Mondal reported him that they killed his father. Hearing this, Monoranjan rushed to his father-in-law's house at Amritapur by riding on a cycle and found that the dead body of his father-in-law was lying in front of Biplabi Sangha Club of the village Amritapur. He came to know from the villagers that while his father-in-law was going to Ajhor-hat, the appellants detained him and assaulted him with fist and blows. He fell unconscious. The appellants shifted unconscious body of Nagendra Nath Mondal near the Club-House and poured water on his head. But Nagendra died soon thereafter. It was alleged further that a mark of injury was noticed on the bridge of the nose of Nagendra which appeared to be caused by fist and blows. On the basis of that FIR, Kumarjang Police station case no (30/86) dated 1.3.1986 was started against the appellants. The investigation into the case ended in a charge-sheet under section 304(Part-II)/34 of the IPC against the appellants. The appellants were arrayed to face the above mentioned charges by the learned Trial Court to which they pleaded not guilty and, accordingly, the trial commenced. The learned Trial Court upon consideration of evidence on record and argument advanced by the learned Counsels appearing on behalf of the parties, found the appellant guilty of offence under section 304(Part-II)/34 IPC and sentenced them accordingly by the impugned order. The appellants challenged the sustain ability of the judgement on the following grounds:

(2.) Mr. Sekhar Bose, learned Counsel appearing for the appellant criticized the judgement impugned by contending that the learned Trial Court without ascertaining the exact cause of death, jumped to a conclusion that the death of Nagendra was anti-mortem and homicidal in nature. According to Mr. Basu, it was admitted position that Nagendra was a heart patient. In the post-mortem report, his heart was found enlarged and right ventricular wall thickened. The examination of the Autopsy surgeon as a witness was a must in such a case. The prosecution withheld the examination of Autopsy surgeon and, as such, it can not be said with certainty that death of Nagendra was ante-mortem and homicidal in nature.

(3.) Mr. Basu contended further that the learned Trial Court did not accept the evidence of P.W. 1 and P.W. 2 i.e. Dijandra Nath Mahanto and Giri Karmakar. These two witnesses were not declared hostile by the prosecution and in view of decision of the Apex Court in Raja Ram vs. State of Rajeshthan, 2005 SCC(Cri) 1050 and Muktiar Ahamed Ansari vs. State, 2005 SCC(Cri) 1037, the evidence of P.W. 1 and P.W. 2 are binding on the prosecution.