MOHINI KARMAKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 9th Court, Alipore, in Sessions Trial No. 2(11) of 1992 corresponding to Sessions Case No. 7(3) of 1992 sentencing the appellants to suffer R.I. for life and to pay a fine of Rs. 1,000/- in default to suffer S.I. for six months under section 302/34 IPC and further sentencing them to suffer R.I. for two years under section 324/149 with the direction that both the sentences will run concurrently. One Swapan Karmakar lodged complaint with the O.C., Falta P.S. alleging that he and his co-sharers used to rear fish in the pond, but during the last three years on account of dispute over the pond, pisciculture had been stopped. On 18.07.1990 at about 10/10.30 a.m. the kinsmen of the informant viz. Mohini Karmakar, Subal Karmakar, Sambhu Karmakar, Bijay Karmakar, Biswanath Karmakar, Dilip Karmakar and Brihaspati along with others came to throw fish into the pond by force without informing the informant. Sukumar Karmakar, the elder brother of the informant protested and then the aforesaid persons raided his house and assaulted Sukumar on the hand, shoulder at random with babla wood, as a result Sukumar received bleeding injury on his head. The informant came to know this from his nephew. At that stage the informant and his brothers protested and the said persons assaulted them with iron rod and wood. As a result Bharat Karmakar, Kanai Karmakar and Biswanath Karmakar sustained serious injury. On receipt of the complaint which was lodged on 18.07.1990 at about 14.50 hours, the case was started under section 148/149/448/325/326 IPC. Subsequently Kanai succumbed to the injuries at the hospital. After completion of investigation, the chargesheet was submitted and upon consideration of the materials on record the learned Trial Court framed charge under section 302/149 for causing death of one Kanai and also under section 148/149/302 IPC against the accused persons to which they pleaded not guilty and claimed trial. Before the learned Trial Court 17 accused persons faced trial and learned Trial Court after conclusion of trial, held five persons viz. Mohini, Subal, Sambhu, Bijay and Biswanath guilty under section 302/34 IPC and also found them guilty under section 324/149 IPC for causing hurt to Shanti, Sukumar and Bharat and passed the sentence stated above. The other accused persons were found not guilty and they were acquitted of the charges framed against them. During the pendency of this appeal one of the appellants viz. Bijay Karmakar had expired and the appeal has, therefore, abated against him. The prosecution in this case examined 19 P.Ws. including the informant, eye-witnesses, injured persons, doctor who examined the injured persons and the autopsy surgeon and the I. O., P.Ws. 6, 7 were declared hostile.

(2.) The learned Trial Judge held that from the evidence on records it was proved beyond reasonable doubt that five accused persons viz. Mohini, Subal, Sambhu, Bijoy and Biswanath in furtherance of the common intention caused death of Kanai by inflicting series of assault on different parts of the body of Kanai and that in furtherance of the common object of causing hurt on Kanai, they caused hurt to Shanti, Sukumar and Bharat and considering the materials on record the learned Trial Judge convicted the five appellants and passed the sentence as stated above.

(3.) Mr. Sekhar Basu appearing on behalf of the appellants has taken us through the evidence of the P.Ws. and submitted that the FIR is concocted, inasmuch as, the incident as stated in the FIR happened at about 10/10.30 a.m., but the informant, as per P. W.2 i.e. the scribe, was found at the P.S. at 10 a.m. and the P.S. is about 17 Km. away from the place of occurrence and, as such, there are sufficient grounds to question the happening of the incident at the time as mentioned in the FIR. Mr. Basu has contended that the autopsy surgeon found smell of alcohol and did not mark any trace of burn injury, although it has been alleged by P. W. 1 and other P. Ws. that the injured were assaulted with the help of hot iron road. Mr. Basu has submitted that so far as the charge is concerned the name of only Mohini Karmakar was mentioned and as regards the names of the other accused persons it was only mentioned "and others" which is a legal infirmity in the prosecution case. It is further contended that against all the accused persons the charge was framed under section 302/34 and also under sections 148/149/302 IPC. Mr. Basu has submitted that as per P.W. 1 Sukumar was assaulted, but, Sukumar did not state in his evidence that he has assaulted by anybody. It is further contended that as per P. W. 1 the complaint was written in the hospital premises but P.W.I could not say who actually wrote the complaint and P.W.2 has stated in his evidence that he found Swapan Karmakar i.e. the informant, at the P.S. and he wrote complaint there as per the dictation of the informant. Mr. Basu has contended that as per the evidence of P.W. 1 the appellants are co-sharers of the pond to the extent of 90% and a civil suit is also pending. It is further contended that the father and the mother of the deceased did not say about the names of the assailants of Kanai and the evidence of the wife of the deceased i.e. P. W. 12 is unacceptable because of being contradictory and inconsistent in nature. Mr. Basu has contended that the most striking of the informant deposed in a contradictory manner and their evidence is not at all worthy of credence. Mr. Bnsu has contended that the most striking shortcoming of the prosecution case is that the parents of the deceased did not say anything against the appellants and they did not even state that from their other injured sons they came to know about the names of the present appellants being the assailants. It is the contention of Mr. Basu that because 'of the improbabilities, grave inconsistencies and discrepancies, the impugned judgment of conviction and sentence as recorded by the learned Trial Court is not sustainable.