NEMAI HEMBRAM Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this appeal, the appellant questions the legality of a judgment of his conviction on being held guilty of an offence punishable under Section 302 of the Indian Penal Code, and his consequential sentence of imprisonment for life along with fine of rupees five thousand. In default of such payment, he has been directed to undergo simple imprisonment for six more months. The judgment has been delivered by the Sessions Judge, Bankura on 14th February 2006 in Session Trial No. 12 of July 2001 arising out of Session Case No. 19 of June 2001.

(2.) AT the material point of time the appellant accused was a constable on sentry duty at Gorabari outpost under Khatra Police Station in the district of Bankura. Charge against him is that he had caused death of one Ganesh Pal, who was on a pleasure trip to Mukutmanipur, by firing at him on 2nd January, 2000 at about 5.30 PM from his service rifle. Case was started upon filing of a First Information Report by one Mrigankar Banerjee (who was examined by the prosecution as P.W. 2) lodged on the same evening at 6.55 PM. Prior to lodging of the FIR, the officer -in -charge of the police station himself had reached the place of occurrence on receiving information from one N.V.F. member, Sukdeb Mahata. The officer -in -charge of the said police station, Dilip Kumar Roy has deposed as prosecution witness (P.W.)8 and his deposition, he has stated that on reaching the place of occurrence, he noticed that the accused was standing aiming his rifle, at the assembling crowd. Thereafter, he was overpowered by the P.W. 8 and other police officials accompanying him, arms were seized from his possession and he was taken into custody. In his written complaint, which is the basis of the formal FIR, Mrigankar has stated that a group from Durgapur were returning from Mukutmanipur in a vehicle, Tata Model No. 608A. The vehicle was being guided by the police near the place of occurrence . It appears from evidence of the prosecution witnesses that because of heavy traffic, the vehicle was diverted from the regular route and instructed by the police to enter the path towards the outpost and exit. It is the prosecution case that while taking that course, a policeman came out from inside the post and fired. As a result of such firing Ganesh Pal, a passenger in that vehicle died. P.W. 2 has named four passengers who were injured, as Kajal Singha Roy, Uttam Bhuin, Kartick Mundari and the FIR maker (P.W. 2) himself. He has stated in his formal complaint: - -

(3.) THE prosecution has altogether examined eight witnesses, four of whom were passengers of the said vehicle. The autopsy surgeon was not examined, but another medical expert, Dr. J.N. De (P.W. 5) has proved the postmortem report, concurring with the opinion of the autopsy surgeon. Another medical practitioner, Dr. Amiya Kumar Mondal was examined as P.W. 6. He has proved the injury reports of three of the passengers being P.W. 2, Kartick Mundari (P.W. 4) and Uttam Bhuin. So far as the injury of the fellow passengers are concerned the P.W. 2 in his deposition has stated that the bullet, after penetrating the glass of the vehicle passed over the head of one Kartick Mundari and hit Ganesh Pal, the deceased victim. The broken glass of the vehicle had caused injury to Kajal Singha Roy. All the passengers tried to save themselves by jumping out of the vehicle and P.W. 2 and Uttam Bhuin got injured in that process. None of these four witnesses, however, could actually identify the police constable who had fired the shot. In course of his cross -examination P.W. 2 stated that he came to know the name of the appellant -accused from the Barababu of the Police Station. None of the prosecution witnesses could attribute any motive or reason for such firing. Apart from the P.W. 2, the three other witnesses who were in the same vehicle and deposed as prosecution witnesses did not see the person who had fired the shot, as it transpires from their depositions.