ASHOKE GIRI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal has been preferred against the order of conviction passed under section 304 part II/34 of the Indian Penal Code where by the learned Additional Sessions Judge, Midnapore in Sessions Trial Case No. XI of September, 1988 convicted the accused persons to undergo sentence of rigorous Imprisonment for four years and to pay fine of Rs. 1,000/- each in default to Rigorous Imprisonment for two months each. Being aggrieved and dissatisfied with the said order of conviction, present appeal has been preferred.

(2.) The circumstances leading to the Sessions case is that on 29.05.1987 at about 8.15 a.m. a written complaint was submitted by one Subimal Kumar Giri to the O.C. Contai Police Station wherein he has stated that his uncle Abanti Kumar Giri had a Panbaroj near his house. As there was occasional theft for the last one year from the baroj so, Abanti's sons used to guard it with lathi and torch during the night. On 28.05.1987 at about 11.30 p.m. Abanti's sons Ghanashyam Giri and Ashoke Giri were guarding the said Baroj with lathi and torch in their hands. At that time they heard the sound of plucking of beatle leaves from inside. They saw a thief coming out through the western gate and immediately Ghanashyam Giri started assaulting the thief with lathi and shouted. Hearing that Ashoke Giri came there and found that the thief was an old lady and he could recognise her as Tarangini Pramanik, mother-in-law of Madhusudan Das of the neighbour in village. It could be seen at that time that there was bleeding from her head and hand. Some beatle leaves were also found in her possession and she was at that time crying. Ashoke then brought water and poured it over her face and head. In the mean time many villagers came to the place of occurrence. As there was no Doctor in the village, so the injured was taken to the Contai Hospital for treatment. But on her way she died. On the basis of the written complaint a specific case was started and investigation was done. During the investigation, witnesses were examined, the dead body was examined by the post mortem Doctor and some articles were seized. On completion of the investigation, charge sheet was submitted against both the accused persons under section 302 IPC and the case was committed to the Court of Sessions. During trial charge under section 302/34 IPC was framed against the accused persons. The said charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. Prosecution in all has examined ten witnesses to prove the charge. Defence has not adduced any evidence. Defence case, as it could be ascertained from the trend of the cross-examination as well as statements made under section 313 Code of Criminal Procedure is that of complete innocence and that out of caste rivalry they have been falsely implicated in this case. The learned Sessions Judge after considering the materials on record, was of the opinion that the prosecution had been able to prove that it was due to the acts of the accused persons that the deceased died. But instead of convicting the accused persons under section 302/34 of the IPC he found it reasonable to convict them under section 304 part II/34 IPC. Against this order of conviction, present appeal has been preferred. It is to be seen as to whether the learned Sessions Judge, was justified in passing the said order of conviction or not.

(3.) I have already pointed out that prosecution in all has examined ten witnesses to prove its case. Admittedly there is a panbaroj of Abanti Giri who is the father of the present accused persons. In the FIR it has been stated that as theft was going on in that baroj so the sons of Abanti were guarding it in the night and in the process when the deceased was allegedly stealing the beatle leaves from that baroj at that time the accused persons caught hold of her and assaulted her and as a result of that she succumbed to her death. In order to establish the charge against the accused persons prosecution has examined ten witnesses. It will be very much relevant for the purpose of this case to look into the statements that have been made by the witnesses in connection with this case. So far as the PW 1 Subimal Kumar Giri is concerned it appears that he is the defacto complainant of this case. It is he, who on the next day of the incident lodged the FIR. But surprisingly in his evidence he has not corroborated the statements as made in the FIR. Simply he has stated on oath that on the night of incident hearing a noise he went to the place of occurrence and found Tarangini Pramanik lying in injured condition. He has specifically stated in his chief "she was unable to speak". He has also stated that many persons were present there excepting the two accused. This witness has stated that he came to know that Tarangini was assaulted by the sons of Abanti Giri when she came there to steal the beatle leaves. But nowhere he has stated as to from whom he heard about this thing. Surprisingly, although this witness materially deviated from his statement in the FIR, still the prosecution did not prefer to declare him as hostile. I shall discuss the evidence of this witness along with the other witnesses later on.