DHIRAI ALIAS DHIRENDRA DAS Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This appeal is directed against the judgment and order elated 31.3. 1986 passed by the learned Sessions Judge, North Tripura, Kailashahar in Sessions Trial No. 22(N.T./K)82 convicting the accused appellants u/s 302 read with 34 IPC and sentencing each of them to suffer imprisonment for life.

(2.) One Rakesh Chandra Das lodged First Information Report in the Kailashahar P.S. alleging that on 20.4.80 at about 7.30/8.00 p.m. when the informant was in his house he heard hue and cry towards the west and so he proceeded to see the things himself. On coming out he saw at a distance of 8-10 paces from the house of Suresh Das that the accused Suresh Das and his two sons, namely, Babul Das and Alok Das and 2-3 others when the informant could identify but did not know their names being armed with lathis, Jhatas and Dagger assaulted rthe deceased Naresh Das. The informant saw by the moon-light that accused Suresh Das was armed with Lathi, Dhirendra Das was armed with Jhata and Babul and Aloke Das were armed with Daggers and the others were armed with lathis and Jhatas. The informant tried to persuade them not to assault on Naresh Das. At this Suresh Das instigated others to catch hold of the informant and to cause assault. Then the informant fled away out of fear. It was further reported by the informant that the assailants named in the FIR caused the (Heath of Naresh Das. Police on the basis of the above information rushed to the spot and brought Naresh Das to Kaliashahar Hospital where he succumbed to the injuries on 21.4.1980 at 00.58 hours in the hospital. After the investigation police submitted charge sheet against the four acsused persons alongwith one Kokil Mitra who died subsequently after framing of the charge by the learned Sessions Judge. The accused were charged for the offence under Section 302 read with 34 IPC for causing the death of Naresh Das along with the deceased Kokil Mitra in furtherance of their common intention. In the trial 16 witnesses were examined including the I/O. Incidentally the doctor who examined the injury of the deceased at the time of admission as well as the doctor who conducted the post mortem examination were not examined by the prosecution. The learned trial Court after the trial and on evaluation of evidence convicted the accused appellants u/s 302 read with 34 IPC and sentenced each of them to suffer imprisonment for life as stated above. Hence the appeal.

(3.) Mr. B.B. Deb, the learned senior counsel appearing on behalf of the appellants assailed the conviction and sentence an the accused persons as unsustainable. The learned senior counsel questioned the conviction firstly on the ground that no conviction of the accused could have been made u/s 302 IPC, for non examination of the person who conducted the autopsy. Mr. Deb, the learned counsel submitted that in the absence of the witnesses, namely, Dr. Sudarshan Bhattacharjee who prepared the injury report and Dr. Sudhir Deb who conducted the post mortem report who were not produced in the Court for reasons best known to the prosecution, those reports could not have been taken into account by the learned Sessions Judge for convicting the accused u/s 302 read with 34 IPC. Mr. Deb, the learned counsel further submitted that in the absence of any reliable evidence against the accused persons of the existence of common intention the accused leading to the doing of a criminal act in furtherance of such intention the accused could not have been convicted under Section 302 of the IPC in aid of Section 34 of the IPC. Mr. Deb, lastly submitted that even otherwise on the basis of the material evidence on record there was absolutely no evidence against the accused Suresh Das and Aloke Das, though at best some inference could be drawn for conviction of the accused Dhirendra Das and Babul Das for convicting them u/s 323 IPC.