NIRANTHAR GHOSH Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an appeal against the conviction of the appellant u/s. 302 read with Section 34, I.P.C. sentencing him to suffer rigorous imprisonment for life. At all relevant time the appellant was about 19 years of age, he was fatherless but lived with his mother and other members of the family.

(2.) The prosecution case is that on 4-5-83 at 10.30 P.M. Kirendra Das (since deceased) was returning home. He was a motor driver of the Assam State Electricity Board and lived at Panchgram under Hailakandi Police Station. When Kirendra almost reached his house, he noticed two persons and asked them what they were doing and what business they had to be there so late at night. At this, the persons struck him with some weapons. He could recognise them to be Niranthar Ghosh, the appellant and Khokan Ghosh (since absconding), both residents of his own village. On being attacked he shouted for help, but before any help could come he received some injuries. On hearing shouts the people of the locality came and took him to his home in an injured condition. It is alleged by the prosecution that the appellant was caught at the place of occurrence and two daggers were recovered from him. Thereafter along with the injured the appellant was taken to a hospital and then the appellant was handed over to the police at the Katakhal Police Out Post. One chaddar and a pair of shoes were found near the place of occurrence. The Officer-in- charge of the Out Post came to the hospital and recorded the statement of the injured Kirendra. On the next day, Kirendra was operated upon but the day following the operation he died at 3 P.M. The police investigated the case against the two accused, but Khokan Ghosh absconded. The police submitted a charge sheet against the appellant and the absconded accused u/s. 3021 34 I P.C.

(3.) In support of the case, the prosecution has examined 7 witnesses. P.W. 1 Dr. P.L. Singha held the post mortem examination over the dead body of Kirendra and found injuries on the dead body. Injuries 4 and 5 were abrasions of insignificant nature. Dr. Singha found two penetrating wounds on the abdomen and one incised wound on the upper part of the inner side of elbow joint. The last wound was a simple injury. The doctor was of the opinion that injuries 1 and 2 were sufficient to cause death in the ordinary course of nature and they might have been caused by sharp pointed weapon. We, therefore, find that there were two penetrating wounds, both on the left side of the abdomen, which resulted in the death of Kirendra. But admittedly Kirendra was operated upon. It was a surgical operation. We are, therefore, to assume that at least one wound was an operational wound. We, however, do not find from the evidence of the doctor as to which of these two injuries was the operational wound. PW. 1 Dr. P.L. Singha was not the Surgeon, who had operated Kirendra. As such he was not in a position to say which of the wounds was caused by the operation. He opined that wounds under injury No. 2 were repaired by surgical operation and that far and no further. We, therefore, do not find any firm evidence as to which of the wounds was operational and which was homicidal, allegedly caused by the two accused. Further, if we turn to the inquest report we find that the police officer found all the injuries as minor except one which he has described a big injury of about iTT X 1 is found in the left side of the abdomen. Two or three injury marks of small size are present below the right knee. The inquest report was marked as Ext. 4 and it has been relied by the prosecution in support of their case. We, therefore, find that the inquest report shows that there was only one large injury measuring about 1,, X 1 on the left side of the abdomen. This discrepancy between the evidence of the doctor and the inquest report has not been clarified by the prosecution. Now, we find from the post mortem report that it was done on 7-5-83 by PW. 1 P.L. Singha, who was the Medical and Health Officer attached to Upgraded Chest Clinic, Silchar Civil Hospital. It does not show that he was the Assistant Surgeon cOmpetent to post mortem the dead body. According to the prevailing practice and according to the form prescribed for recording the result of the post mortem examination, the opinions relating to the examination should be recorded only by the Assistant Surgeon or the Sub Assistant Surgeon. Further, we do not find any final opinion of the Civil Surgeon in the post mortem report. We, therefore, find that the Medical and Health Officer, Grade I attached to the Upgraded Chest Clinic, Silchar Civil Hospital, held the post mortem. He does not claim that he was the Assistant Surgeon or Sub-Assistant Surgeon competent to hold the post-mortem examination. Be that as it may, the doctor has expressed some opinion about the wound, but the opinion was not confirmed by the Civil Surgeon, which was a must under the prevailing practice. We also find that the police officer who held the inquest found only one injury. How comes the other injury? Further, we find that the post mortem report and the opinion contained therein cannot be acted upon in the absence of the final opinion of the Civil Surgeon. We, therefore, find ourselves in difficulty in accepting that injuries 1 and 2 allegedly found by PW. 1 Dr. Singha were really two wounds or one wound. We also do not find any firm opinion as to which of the injuries was the operational wound. We find it difficult to accept the opinion of PW. 1 Dr. P.L. Singha that injuries 1 and 2 were sufficient to cause death in the ordinary course of nature. The opinion is not confirmed by the Civil Surgeon. The opinion does not appear to be the opinion of the Assistant Surgeon or the Sub-Assistant Surgeon and, as such, the opinion, cannot be acted upon without a grain of salt. However, the post mortem report compounds further misery for the prosecution. What we find from the post mortem report is that the very same doctor, PW. 1 Dr. Singha had opined death was due to shock and haemorrhage resulting from the injuries describedTT. We therefore find that the opinion of the doctor that injuries 1 and 2 were sufficient to cause death was conspicuously absent in the post mortem report, but we find that he had opined that the death was the cumulative effect of the injuries sustained by the injured. Further, the admitted position is that the injured was operated upon and the injuries referred to in the post mortem report must also include the wound which the Surgeon had inflicted while operating upon the injured Kirendra. Situated thus, we are unable to accept the opinion of the doctor that injuries 1 and 2 were sufficient to cause death in the ordinary course of nature. However, there cannot be any doubt that the deceased received some injuries on the date of occurrence by someone or some persons and he died 3 days after the assault and after he had been operated upon.