GANESH KUMAR GURUNG Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE revisional application is directed against the judgment and order dated 29th November, 2008 passed by the learned Sessions Judge, 2nd Court, Siliguri acquitting the opposite party no. 2 of the charge under Section 302 of the Indian Penal Code. The prosecution case as alleged against the opposite party no. 2 is to the effect that on 3rd November, 2002 the petitioner filed a written complaint with the officer in charge, Matigara Police Station alleging that on 3rd November, 2002 at about 9.30 p.m. his son Chetan Gurung was seriously injured. After getting such information he immediately rushed to Kalam Jote Tri Junction. He saw the opposite party no. 2 was coming from Durgamandir side. Opposite Party no. 2 was holding a short rod which on striking the ground gave out a metallic sound. Immediately thereafter he found that three/four persons were pulling a rickshaw van from Durga Mandir side. He saw his son was lying in the van with the injury on his head with profuse bleeding. His son was taken to Medical College for treatment. While his son was being treated, he came to Matigara police station and lodged the first information report. As a result Matigara Police Station case no. 347/02 dated 4th November, 2002 under Sections 326/307/34 of the Indian Penal Code was registered. Subsequently his son expired and charge sheet was filed inter alia, under Section 302 of the Indian Penal Code against opposite party no. 2. The case, being a sessions triable one, was committed to the Court of the learned Additional Sessions Judge for trial and disposal. Charge was framed under Section 302 of the Indian Penal Code. The opposite party no. 2 pleaded 'not guilty' and claimed to be tried. In course of trial, prosecution examined as many as thirteen witnesses including the doctor and the investigating officer. Defence of the appellant was one of innocence and false implication. In conclusion of trial, the learned trial Judge by the impugned judgment and order acquitted the opposite party no. 2 of the charge levelled against him.

(2.) MR . Purakayastha, learned counsel appearing for the petitioner submitted that the trial Court had committed grave error in recording an order of acquittal. The trial Court did not appreciate the evidence of P.W. 1 and P.W. 10. P.W. 1 found the opposite party no. 2 coming from the Durga Mandir side with a short iron rod in his hand which sounded like metal. P.W. 10 stated that persons were resisting Sanjib by saying "don't do it, don't do it". Mr. Purakayastha accordingly prayed for setting aside of the order of acquittal.

(3.) MR . Ghosh appearing for the State submitted that P.W. 4 is a vital eye witness and he has not supported the prosecution case. Therefore, according to him, the order of acquittal does not require any interference.