ISWAR TUDU Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) There was unnatural death of one Dilip Tudu (victim) on 16th December 2012, in a village by the name of Kalipur in Nalhati police station within the district of Birbhum. The cause of death, as per the post -mortem report was the effects of certain injuries recorded in the same report. The injuries, which we shall refer to in detail later in this judgment, were in the frontal and rear portion of his head. The autopsy surgeon opined in the post - mortem report that the injuries were ante mortem and homicidal in nature. In the written complaint made on 17th December 2012, by one Sonamoni Tudu, it was alleged that death of the victim was on account of assault by Iswar Tudu (the accused/appellant) by a bamboo lathi, as a result of which the victim fell 'flat' with serious injury. Said Sonamoni Tudu is the sister of the victim whereas the accused is her cousin. As per the written complaint, which has been marked 'exhibit - 5', local people had carried the victim to the Rampurhat hospital where he died after sometime. The First Information Report was registered on 17th December 2012 at about 12.25 hours and on that basis Nalhati P.S. case no. 287 of 2012 was started, from which this proceeding originates.

(2.) The F.I.R. maker Sonamoni Tudu has deposed in the trial as Prosecution Witness No.1. In her complaint she has indicated that she was busy in treatment related work and that is why there was delay in making the complaint. Inquest was made on the date of making of the complaint itself. From the evidence of the Investigating Officer, being the Prosecution Witness No. 9, it transpires that after getting charge of investigation, he had visited the place of occurence. He had examined the available witnesses there and arrested the accused/appellant. The memo of arrest reveals that the accused/appellant was arrested on 17th December itself at 14.05 hours from the same village in which the incident occurred. In course of investigation, a lathi (stick) made of bamboo of about 2 1/2 feet in length and about 9 inches in width was seized. The seizure list (exhibit - 2) records that it was seized from the possession of the accused and the accused himself had produced the same. We find from exhibit - 2 that seizure was made at 14.15 hours. The seized bamboo stick had been made material exhibit in the trial, and the prosecution case is that this lathi was the weapon of assault. Two seizure witnesses (P.W. 2 and P.W. 3) as also the Investigation Officer have identified the bamboo stick, as being the one which was seized.

(3.) On completion of investigation chargesheet was submitted, and the case was committed for trial. Charge was framed under Section 304 of the Indian Penal Code, 1860 and upon the accused pleading not guilty, he was tried by the Additional Sessions Judge, Birbhum at Rampurhat. The case was registered as Sessions Trial No. 25/May/2013 corresponding to Session Case No. 59 of 2013. Altogether nine witnesses were examined by the prosecution in course of trial. The accused did not examine any witness in his defence. In response to his examination under Section 313 of the Code of Criminal Procedure, 1973, his stand was that of denial. P.W. 1, P.W. 2 (Ranjit Tudu), P.W. 3 (Nibir Soren), P.W. 4 (Sumir Soren) and P.W.7 (Babu Tudu) deposed for the prosecution as witnesses of fact. The autopsy surgeon, Subash Poddar was examined as P.W. 5, who proved the post -mortem report. He, however, was not shown the aforesaid material exhibit. In course of his depositon, he stated that he had collected the "stomach content, portion of liver, one kidney, sample of blood in separate file, few hair, few nails." These articles were preserved by him separately in glass jar and were handed over to the attending constable. He has stated in his examination -in -chief that he had collected those articles for sending the same for F.S.L.(Forensic Science Laboratory) examination report, but he did not receive any opinion from F.S.L. P.W. 8, Santosh Maharaj was the scribe of the written complaint (exhibit - 5), which was proved by him. P.W. 6 (Krittibas Ghosh) and P.W. 9 (Pradip Ghosh) were police witnesses. P.W. 6 had conducted inquest and a carbon processed copy of the inquest report has been marked exhibit - 1/2. P.W. 9 was the Investigating Officer. In their examination -in - chief, P.W. 1, P.W. 3 and P.W. 7 deposed as eye - witnesses of the actual assault, whereas P.W. 2 deposed as post -occurence witness. The deposition of P.W. 4 was in the nature of hearsay. In order to establish the appellant as the assailant, prosecution also relied on evidence of P.W.2. In his examination -in -chief, the P.W.2 stated that he had reached the house of Dilip Tudu on 16th December 2012 after returning from the field, and saw many other persons proceeding at the same direction. On reaching there, he found the victim bleeding, and in restless condition. On being asked, the victim told him that the accused Iswar Tudu had assaulted him. In addition to these depositions, in the inquest report the P.W.6 has recorded that it was revealed from Utpal Tudu, nephew of the deceased that in the afternoon of 16th December, the victim was engaged in quarrel and action with the accused as a result of which he died at the hospital. Utpal Tudu however was not examined by the prosecution.