- (1.) The appellant Shyam Sundar Karmakar, the original accused No. 1, was charged and tried for offence under section 304 Part I/34 of IPC in the Court of learned 2nd Additional Sessions Judge at Bankura in Sessions Trial No. 2 of 1987. The appellant was found not guilty for offence under section 304 Part I/34 IPC but found guilty and convicted for committing an offence under section 304 Part II/34 of the IPC and was sentenced to suffer RI for 5 years and to pay a fine of Rs. 2000/-. In default of payment of fine, he was to suffer RI for 6 more months. Smt. Mira Karmakar another accused in that trial, was, however, found not guilty of any offence and, accordingly, was acquitted from the charge. Succinctly, the case of the prosecution is stated below : a) on 10.7.1985 at about 12.30 hours, an altercation cropped up between Saktibala Pal (P.W. 5) and Mira Karmakar over a petty matter. During continuance of that altercation, Rabindranath Pal appeared and intervened. Mira Karmakar being furious slapped Rabindranath and the minor sons of Mira pelted brickbats on Rabindranath. The appellant Shyam Sundar Karmakar appeared in the scene also and joined his wife Mira and minor sons. He also hit Rabindranath with a brickbats on his head and thereby caused head injury. Rabindranath fall on the ground with profuse bleeding. Rabindranath was taken to his house first of all and attended by one compounder. Thereafter, he has taken to B. S. Medical College and Hospital and was admitted there. On the next day i.e. on 11.7.1985, at about 5.30 p.m., Rabindranath succumbed to his injuries. b) Dwijendra Nath Pal (P.W. 8) the brother of deceased Rabindranath Pal lodged one FIR with Bankura Police Station and accordingly, Bankura Police Station case No. 15 dated 11.7.85 was registered and started against the appellant Shyam Sundar Karmakar and his wife Mira under section 304/34 IPC. The case was investigated into. On completion of investigation the Investing Officer submitted chargesheet on 8.8.1985 for prosecuting the appellant and his wife Mira under section 304/34 IPC. c) The case was tried the learned Additional Sessions Judge, 2nd Court at Bankura. Upon consideration of materials placed before him, the learned Court framed charge under section 304/34 IPC against the appellant and his wife Mira for committing culpable homicide not amounting to murder by causing death of Rabindranath Pal. The appellant and his wife denied the entire case of the prosecution and accordingly, the Trial commenced. In course of the Trial, prosecution examined as many as 13 witnesses. Some documents including the original FIR, injury reports, seizure list have been marked exhibit on behalf of the prosecution. No witnesses was examined nor any document was admitted into evidence on behalf of the appellant. The learned Trial Court, upon consideration of the oral as well as documentary evidence found that the prosecution proved the case against the appellant shyam Sundar Karmakar for committing an offence under section 304 Part II IPC and accordingly passed the sentence mentioned earlier. Being aggrieved by the said order of conviction and sentence passed on 27.2.1988, this appeal has been filed.
(2.) Mr. Asok Biswas, the learned Counsel appearing for the appellant has made five fold argument mentioned below : i) that the learned Court failed to appreciate the evidence on record properly; ii) that the learned Court was oblivious of the most important fact that the actual FIR was never placed before the Court and as such, the Court was not in a position to know the actual state of affairs mentioned therein; iii) that the learned Court relied on the evidence of P.W. 4 mainly which is full of discrepancies and not at all trustworthy; iv) that the learned Court ignored the opinion of the Doctor who conducted the post-mortem on the deadbody of the deceased to the effect that cause of death might be for ordinary falling on hard and rough substance and; v) that the learned Court once opined that in the fitness of a circumstances and imprisonment for 3 years with a fine of Rs. 2,000/- would meet the ends of justice but, at the same time, recorded sentence to suffer R.I. for 5 years with a fine of Rs. 2,000/-. The appellant prayed for setting aside of the order of conviction and sentence passed by the learned Trial Court.
(3.) Mr. Abijit Adhya, the learned Counsel appearing for the respondent, State of West Bengal contended that the oral testimonies of P.W. 4 Bharmar Dey, a local man and P.W. 5 Saktibala Pal wife of deceased Rabindranath Pal altogether has supported the prosecution case. The other witnesses examined on behalf of the prosecution was also found credible and trustworthy. The death of Rabindranath Pal was found on post-mortem homicidal and ante-mortem in nature. The fact that the appellant hit him on his head with a brickbats has been established by cogent and satisfactory evidence. Therefore, the findings of the learned Trial Court cannot be said to be incorrect.;