(1.) This appeal has been laid before me under Section 392 of the Code of Criminal Procedure, 1973, since the two Hon'ble Judges, namely, Nure Alam Chowdhury, J. and Debi Prasad Sircar-I, J. who heard the appeal initially, were divided in opinion : the former acquitting the appellants and the latter remanding the matter for further trial and fresh judgment.
(2.) I have heard Sri Balai Chandra Roy, the learned senior Advocate for the appellants, Sri Sasanka Ghose, learned Advocate for the State and Sri Ahindra Adhya, learned Advocate, as amicus curiae. I am in respectful agreement with the judgment rendered by Nure Alam Chowdhury, J. that non-examination of the material witnesses and withholding of the relevant documents have resulted in infirmities in the prosecution case and support the defence case that the occurrence did not happen at the place and in the manner as alleged. I am of the view that for the reasons recorded by Chowdhury, J., the prosecution has failed to prove its case beyond reasonable doubt and therefore, the appeal deserves to be allowed and the appellants acquitted.
(3.) Sircar-I, J. is the view that there are certain loopholes in the investigation and trial of the case, as a result of which, the correct decision cannot be arrived at and the circumstances require that the case should be sent to the learned Additional Sessions Judge for further evidence, fresh examination of the accused persons under Section 313 of the Code of Criminal Procedure and for fresh judgment covering all the points involved in the case after giving the parties fresh opportunity to argue on all the points and, therefore, the appeal should be allowed to that extent for remand. The first infirmity referred is that the O.C. Labhpur P.S. under whose jurisdiction the incident took place and to whom the incident was communicated over telephone from Bolpur P.S. did not take steps to draw up F.I.R. as per law on the telephone message, which was a gross illegality, since the G.D. Entry, Exhibit 'B', which was produced by the defence revealed that none other than the victim himself informed Bolpur P.S., about his miseries and the circumstances in which the injuries were inflicted and also the names of the persons who inflicted them. It is further observed that this G.D. Entry No. 373 dated 10th February, 1985 is of immense value, but O.C., Nirmal Kumar Chowdhury who received the telephonic message, as per his state ent, did not make any attempt to ascertain the identity of the person who telephoned him. Further, G.D. Entry No. 282 dated 10th February, 1985 of Labhpur P.S. for reasons best known to him and his successor in respect of the investigation is not traceable and the same must be traced out and produced for judicial consideration along with all other evidence and facts and circumstances, as the same is indispensable in the interest of justice for the correct judicial decision, as a case cannot be terminated in acquittal or conviction by hook or crook without taking any steps for production of a vitally important document which triggered of the prosecution case. Further, it is stated that the trial "Court may take into consideration the Exhibit B for considering if the evidence adduced by the prosecution corroborates the same." Another ground for remand is that the dying declaration of the victim which was recorded by the I.O., PW. 16, on 12.2.85 while the victim was in the hospital at Suri for treatment had not been put to the accused person under Section 313 Cr. P.C., and so could not be considered in support of the prosecution case.