KHIRODRA CHATTRIA Vs. NIMA ALIAS NILANCHAL NAG

JUDGEMENT

(1.) This is an informant's revision against conviction of the opp. party No. 1 under Sec. 323, IPC in a trial in which he stood charged under Sec. 302, IPC and his father under Sec. 302/34, IPC. While the father Ramakrushna was acquitted, the opp. party No. 1 on conviction under Sec. 323, IPC was sentenced to R.I. for six months. PW 1 who lodged the FIR and is the paternal uncle of deceased Dhruba Chhatria assails the acquittal of opp. party No. 1 under Sec. 302, IPC.

(2.) The short sketch of the facts is that PW 2, a nephew of PW 1 while going to Malpara at about 3 p.m. on 12-12-1987 on a cycle to purchase some thread came across the deceased having been caught hold of by Ramakrishina and being assaulted by opp. party No. 1 with a stone. On his protest he was threatened to be killed for which he came back and informed the matter to PW 1 and immediately both of them rushed to the spot and discovered the deceased lying therewith bleeding injuries. On their query the deceased stated of having been assaulted by opp. party No. 1 causing the injuries by means of a stone. Other people also reached the spot and carried him to the hospital at Tusara but on being brought there, he was declared dead. Six witnesses were examined by prosecution of whom PW 2 was the eye-witness, PW 3 was a witness to the seizure and the PW 4 was the witness who had accompanied the deceased to the hospital. PW 5 is the doctor who conducted autopsy of the deceased and PW 6 was the Investigating Officer. Opp. party No. 1 and his father adopted the plea of denial and of having been falsely implicated on account of enmity.

(3.) A perusal of the judgment of the learned Sessions Judge shows him to have reached the following conclusions on the evidence :