HARKA BAHADUR RAI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the judgment and order of conviction dated 8th July, 1994 passed by the learned Additional Sessions Judge, Jalpaiguri in Sessions Trial No. 11 of 1991 (Sessions Case No. 57 of 1991) whereby the appellant Harka Bahadur Rai was found guilty under Section 302 of I.P.C. and was sentenced to suffer imprisonment for life and to pay fine of Rs. 2,000/- i.d. to suffer R.I. six months.

(2.) The prosecution case was started on the basis of written complaint or F.I.R. lodged by one Smt. Thula Rai, sister of deceased Bhakta Bahadur to the O.C., Banarhat P.S. and on the basis of Bach complaint the then O.C. P.W. 16 Jitendra Nath Roy started Banarhat P.S. Case No.1 dated 1.10.1988. The F.I.R. was written in Hindi by one Tek Bahadur on the basis of statement of Thula Rai and P.W. 16 received the F.I.R. on 1.10.1988 at 21.05 hrs. It was mentioned in the F.I.R. by the informant that on that day at about 7.00 P.M. her elder brother Bhakta Bahadur reached at her house with bleeding injury near to his chest and stated to her that Harka Bahadur had assaulted him with khukri alias kukri. Her brother asked for water and uttering this he fell down on the ground. She brought water soon but taking little water he died there. She then raised hue and cry and hearing it Naina Singh Biswakarma, Tek Bahadur Chettri and others turned up there and saw the dead body of Bhakta Bahadur. It was learnt that her brother Bhakta Bahadur had gone to Debpara Bagan and on his very back he was assaulted by Harka Bahadur with a kukri. On the basis of such F.I.R. investigation was started into Banarhat P.S. Case No.1 dated 1.10.1988 and it subsequently ended in submission of charge-sheet agianst the appellant. He was tried by the learned Additional Sessions Judge, Jalpaiguri and was convicted under Section 302 of I.P.C. and was sentenced to suffer imprisonment for life and also to pay fine of Rs. 2000/- in default to suffer R.I. for six months.

(3.) Challenging the said judgment and order of conviction the appellant preferred the instant appeal from Berhampur Central Jail. Mr. Asim Roy, appearing for the appellant as State Defence contended that P.W. 1 Smt. Thula Rai was the only witness relying on whose evidence the learned Judge convicted the appellant. He contended that the alleged statement of deceased Bhakta Bahadur to P.W. 1 before his death is not believable at all. The deceased was not in such a condition to make such a dying declaration before his death with such serious grievous cut injury on his neck. The evidence of P.W.4, P.W.5, P.W.6, P.W.7 and P.W.8 to the effect that they heard from P. W.1 that at the time of death the deceased told her that he was assaulted by Harka Bahadur with kukri is not reliable and acceptable as P.W. 1in her evidence did not state that she reported this fact to these witnesses. There was no corroboration in view of provisions of Section 157 of Evidence Act and, therefore, the evidence of these witnesses cannot be relied upon. He further contended that P.W. 17, the Doctor who held Post Mortem (hereinafter called P.M.) examination on the dead body of Bhakta Bahadur Chettri did not state in his evidence that the injury found on the body of deceased was sufficient in the ordinary course of nature to cause death. Referring the decisions he contended that absence of this statement in the evidence of Doctor makes it clear that it is a fit case to alter the conviction into under Section 304 part 1 of I.P.C. from conviction under Section 302 of I.P.C. He contended that since his arrest the appellant is in custody and since trial and order of conviction he is in custody. Considering his long detention in custody the Court under these circumstances can convert the conviction into Section 304 Part 1 of I.P.C. and considering his long detention he may be released.