KHOKAN HALDER Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction dated 12.05.2010/13.05.2010 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Rampurhat, Birbhum, in sessions Trial No. 5(March)/2009 thereby convicting the appellant under Section 304(Part-II) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for four years and to pay fine of Rs.2000/- with default clause. Ms. Rupa Bandyopadhyay, learned amicus curiae for the appellant, has contended that the judgment impugned is based on the direct testimony of three eyewitnesses. But, the learned Trial Court failed to consider that there were many betel shops near the place of occurrence and the owners of those betel shops were not cited and examined as witnesses. The witnesses examined on behalf of the prosecution mostly are not ocular witnesses. Their evidences are hearsay in nature. The P.W. 4 was declared hostile. Ms. Bandyopadhyay further contended that the doctor, who conducted post-mortem over the dead body of the deceased, opined that the injuries detected by him might have been caused if a person fell on rough and hard substance. THIS apart, she contended, that the First Information Report was lodged after holding inquest over the dead body, which, obviously, casts shadow of doubt as to the genuineness of the First Information Report. Ms. Bandyopadhyay contended that the appellant has been sentenced to suffer rigorous imprisonment for four years, out of which he has already undergone two years and five months in custody in connection with this case. After statutory remission, much time is not left for him to remain inside the jail in connection with this case. Therefore, she contended, the sentence of the appellant be reduced to the period he has already undergone.

(2.) ON 06.02.2008, one First Information Report was lodged with Naihati Police Station alleging therein that on 05.02.2008 at about 07.45 p.m. at Paikpara More, the appellant picked up quarrel with the father of the de facto complainant Sahabul Sk. over a trivial issue. The appellant Khokan Halder started assaulting Firoz Sk. with fists, blows and kicks. Firoz fell down on the road and the appellant dashed his head on the morrum road violently. The incident was witnessed by Kurban Sk. and others who took Firoz Sk. to his house. Seeing the injuries on the backside of the head, left hand and on the leg, Kurban Sk. and others thought it proper to take Firoz to dispensary in the next morning as there was no dispensary nearby. But, at about 10.30 p.m. Firoz Sk. succumbed to his injuries. A case was initiated on the basis of the said First Information Report. The case was investigated into and ended in a charge sheet under Section 304 (Part-II) of the Indian Penal Code. The appellant pleaded not guilty and, as a result, the trial commenced. The prosecution examined, as many as, 10 witnesses in course of trial. Some documents, such as, First Information Report, Inquest Report, Post Mortem Report, Dead Body Challan, Sketch Map of the Place of Occurrence, etc. were admitted into evidences and marked exhibits on behalf of the prosecution. The learned Trial Court upon consideration of the evidence on record, oral and documentary, came to the findings that the prosecution brought home the charge under Section 304(Part-II) of the Indian Penal Code against the appellant and recorded conviction and sentence by the judgment and order dated 12.05.2010/13.05.2010, which is impugned in this appeal.

(3.) THE P.W. 7 is the scribe of the First Information Report. He came to know about the incident from Sahabul Sk., the P.W. 1, and reduced the First Information Report in writing as per his instruction. THE P.W. 8 was not an ocular witness. He came to know about the incident on the next date. THE P.W. 10 is the Investigating Officer of the case who had been to the place of occurrence for the purpose of investigation and prepared the sketch map of the place of occurrence (Exbt. 6). He also performed inquest over the dead body of the deceased on 06.02.2008 (Exbt. 3). He sent the dead body to the Rampurhat S.D. Hospital Morgue vide dead body challan (Exbt. 5), collected the post mortem report, examined available witnesses and, thereafter, submitted charge sheet.