BHARAT SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The primary ground urged in this appeal is that the conviction should have been under the second part of Sec. 304 of the Penal Code for culpable homicide not amounting to murder rather than under Sec. 302 thereof.

(2.) The facts are not in much dispute and little attempt has been made on behalf of the appellant to discredit the versions of the eye-witnesses whose testimonies were relied upon by the trial court. Briefly stated, it appears that on Sept. 2, 2006 at about 11 am there was an altercation between the victim and the appellant upon the appellant uprooting the cement pillars put up by the family of the victim to demarcate the boundary between the parcels of land owned by the two families. The appellant uprooted one or more cement pillars and threw them some distance away. The victim protested such conduct and demanded that a surveyor be engaged to demarcate the boundary. The victim also attempted to pick up a cement pillar, with the possible intention of reinstalling the same. The appellant, who had a sabal in his hand for the purpose of digging the earth to uproot the cement pillars, struck at least two blows on the head of the victim when she bent down to try and pick up a cement pillar. The blows were from the blunt side of the sabal which resulted in the almost instantaneous death of the victim.

(3.) A close neighbour of the victim claims to have witnessed the incident and the prosecution could not ascribe any motive to her testimony. Another eyewitness corroborated what took place, but she was a further distance away from the place of occurrence. A labourer attached to another neighbour also claims to have been an eye-witness who alerted the relevant neighbour immediately upon witnessing the incident. The trial judge found the oral evidence to be truthful and acceptable and held that none of the eyewitnesses were broken down in course of the cross-examination nor was any animosity between any of such witnesses and the appellant established. The trial court found the post-mortem report and the opinion of the medical officer to be in-keeping with the incident described by the eye-witnesses and consistent with their claims of the nature of the injury.