AAR GHOSH Vs. STATE OF W B

JUDGEMENT

(1.) This appeal is directed against an order dated 19.5.1980 passed by the learned Additional Sessions Judge 12th Court Alipore in Sessions Trial No. 11(5) of 1979 whereby the appellants Amar Ghosh and Ananda Das were found guilty to the charge under section 304, Part II read with section 34 I.P.C. and sentenced to 1 years R.I. They were charged under the aforesaid sections for having caused the death of one Hossain Ali Gazi by mercilessly beating with lathi and split bamboo in furtherance of their common intention on the dead of night on 24th/25th April, 1978 at village Dhaltitha within P.S. Basirhat. The prosecution case stood as follows: Hossain Ali Gazi (deceased) and the appellants were local residents of the village Dhaltitha. The appellant Ananda was at the relevant time a servant of Putiram Ghosh the father of the other appellant Amar Ghosh. Hossain Ali Gazi was stealthily stealing some mangoes from the mango- grove of Putiram in that dead of night. This was found out by Amar and Ananda. Amar and Ananda got furious over the matter and they along with others beat him mercilessly with a lathi and a spilt bamboo so much so that he fell down unconscious on the spot and died soon after he was sent to local hospital. On the same dead of night Kasem Ali Gazi (P.W. 1) son of Hossain Ali Gazi (deceased) visited the spot. He found that his father was severally beaten and that he was lying unconscious on the ground. Kasem Ali lodged a G. D. Entry which was marked as ext. 3 at 8 hours in the morning. At about 10 a.m. Kasem gave a written statement which was treated as the F.I.R. of the case (ext. 1). The injured expired in the hospital towards the afternoon of 2nd April 1978. Blood stained lungi from the dead body was recovered and seized. Witnesses were examined in due course of investigation and charge-sheet was submitted against the two appellants and 3 others under sections 342 and 304, Part 11/34 I.P.C. The learned Additional Sessions Judge who tried the case was pleased to acquit 3 of the accused persons under section 232 Cr.P.C. and the remaining 2 were however convicted and sentenced as already indicated before. Being aggrieved thereby the two appellants have come up in appeal before us.

(2.) Mr. Biplab Mitra, learned advocate appearing for the two appellants has contended before that the G. D. Entry dated 25.4.1918 lodged by P.W. 1 (ext. 3) being earlier in point of time ought to have been treated as the F.I.R. in this case in place of the written statement of P.W. 1 which was recorded subsequently at 10 a.m. on 25.4.1978. Mr. Mitra is right. For investigation of the case was started on the basis of the G.D. (ext. 3) which was an earlier document in point of time. The written information (ext. 1) being inadmissible ought not to have been treated as F.I.R. (ext. 1) at all. Mr. Mitra has further contended that although as many as 18 P.Ws. were examined at the trial, none of them could actually vouch safe that he had seen the appellants or any of them actually assaulting the victim by a lathi and a spilt bamboo. In the absence of any eye witness, the trial court according to Mr. Mitra ought not to have convicted the appellants in the way it did. It has been argued by Mr. Mitra that P.W. 1 Kasem Ali Gazi, son of the deceased ought not to have been believed at all by the trial court seeing that he was not present on the spot on that alleged night at all Reference was made in this connection to the cross-examination of P.W. 2 Jahar Ali Gazi who stated that he did not see Kasem on that night. Lastly, it has been argued that the learned trial court erred in the matter of relying upon the alleged dying declaration (ext. 4) inasmuch as that declaration was recorded by the 1.0. (P.W. 18) Priyasankar Ray without the aid and assistance of any magistrate or doctor whatsoever.

(3.) We have given our best consideration to the aforesaid contentions of Mr. Mitra. We are however unable to accept his submissions. We assign the following reasons for our view. We have carefully perused the G. D. Entry (ext. 3) and we have satisfied ourselves to see that the material ingredients of the offence under section 304, Part II, I.P.C. are all there in the G. D. Entry. In the G. D. Entry for example it has been mentioned in clear term, that Amar Ghosh and his party-menT assaulted and injured the victim. We shall see presently that the facts and circumstances of the case unmistakeably show that none but Amar and Ananda could beat the victim at that dead of night. With regard to the dying declaration, we shall make our comments hereinafter in detail. For the present it would suffice our purpose to say that the learned trial court did not entirely rely upon the dying declaration (ext. 4) and that the court merely treated the same as a corroborative piece of evidence.