AMIYA SARKAR Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) ON 21st April, 2004, one Swapan Sarkar was injured in an assault on his head and other parts of the body, and he eventually died on 24th April, 2004 at about 4.35 P.M. in Nil Ratan Sarkar Medical College and Hospital (NRS) in Kolkata. The incident of assault is alleged to have taken place at Swarnakhali Bazar under Krishnaganj Police Station in the district of Nadia, in front of a shop of one Raju Das, who was earlier known to Swapan (the victim). Raju had reported the incident to police and subsequently deposed for prosecution as Prosecution Witness (PW) No. 1. Raju had complained that he was also injured by assault, along with the victim. Immediately after the incident of assault, the victim as also Raju were taken to Krishnaganj Hospital, which is a Primary Health Centre. Raju received first aid there and as per his evidence, he was released thereafter. The victim however was referred to Saktinagar Hospital, which we are apprised by the learned counsel of the appellant, is District Hospital of Nadia. He was thereafter transferred to the Nil Ratan Sarkar Medical College and Hospital (NRS) at Kolkata, where he succumbed to his injuries. The written complaint was lodged on 23rd April, 2004, and from the First Information Report (FIR), which is marked exhibit 6, lodged in the Krishnaganj Police Station, we find the time of receiving is recorded as 12.45 hours. The letter of complaint, which appears to have been written on the date of occurrence of the incident forms the basis of the formal FIR. The written complaint and the depositions of the witnesses reveal that the incident of assault was the result of a quarrel in which the victim, the PW 1, the accused -appellant Amiya Sarkar and one Subodh Biswas were involved over a goat sacrificed before the Goddess Kali on the night of 20th April, 2004. The "Kali puja" had taken place in the house of the elder sister of Raju, Smt. Dipu Bala. Said Dipu Bala and her husband Biswanath Bala have been examined as PW 5 and PW 12 respectively in course of trial and both of them in their depositions have confirmed the trouble, which, according to the prosecution occurred on 20th April, 2004. The PW 12, however, has stated in his examination -in -chief that the dispute had been resolved at the spot on the same night only. Raju, in his written complaint alleged that the accused and Subodh Biswas had committed the assault. So far as Subodh Biswas is concerned, we find from the judgment under appeal that the case against him was filed and he was not brought to trial. It was the appellant, Amiya Sarkar, who alone faced the trial.

(2.) THE prosecution case is that in the evening of 21st April, 2004 when the victim was sitting with the PW 1 in front of the latter's cloth store at Swarnakhali Bazar, the accused Amiya along with Subodh came in a bicycle to that spot, and Amiya had assaulted the victim with a piece of wood on his head from the rear. On the first strike itself, Swapan had lost his senses and fell down on the ground, after which Amiya struck two or three more blows on the body of Swapan. Thereafter, Raju had caught hold of Amiya, at which point of time Subodh hit Raju with a piece of wood. The accused persons had left the place of occurrence (P.O.) without the cycle and the weapon of assault, being a piece of wood. After lodging of complaint two days later from the date of occurrence, the Investigating Officer, Pintu Sarkar, a Sub -Inspector of police who at the material point of time was posted at Krishnaganj Police Station as the Officer -in -charge, had taken up the investigation himself. He has deposed at the trial as PW 14. As per his deposition, on the date of lodging of complaint itself, he had visited the place of occurrence and seized one wooden piece as also one bicycle from a location in front of the shop room of Raju. The time of seizure, as per the seizure list marked exhibit 2 is "18.05 -14 -15 hours". This, according to the prosecution implies that the exercise of seizure stretched over ten minutes, between 18.05 hours to 18.15 or 15 hours.

(3.) ON behalf of the prosecution altogether sixteen witnesses have been examined whereas no one was placed by the defence as witness. Raju Das (PW 1), Indrajit Kirttonia (PW 2) nephew of the victim, Tapati Das, (PW 3) a sister of Raju, Bhulan Das, (PW 4) - brother of the deceased and Swapan Biswas (PW 10), a member of the N.V.F. have deposed as eye -witnesses to the incident of assault. Altogether four medical professionals have been examined, being Dr. Swapan Kumar Kar (PW 7), Dr. Samir Chowdhury (PW 9), Dr. Prabhas Chandra Chakraborty (PW 15) and Dr. Asit Baran Ghosh (PW 16) on behalf of the prosecution. The PW 7 had attended to the victim at Krishnaganj Hospital. The PW 9, at the material point of time was posted in the District Hospital and he had referred the victim to NRS Medical College and Hospital. Dr. Asit Baran Ghosh (PW 16) had examined the victim on 22nd April, 2004 at NRS Hospital, whereas PW 15 had undertaken the autopsy. Bipul Sarkar (PW 6) and Akhil Sarkar (PW 11), both brothers of the victim, Barun Das (PW 8), the scribe of the written complaint and one Sujit Mondal (PW 13) were also examined by the prosecution. The depositions of PWs 6, 11 and 13 mostly relate to obtaining information from other persons as regards the occurrence of the incident of assault and are in the nature of hearsay. The PW 1, PW 2, PW 3 and PW 4 have also deposed as seizure witnesses.