- (1.) This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 1st Court, Midnapore in Sessions Trial Case No. XXIV of December, 1992 arising out of G.R. Case No. 242 of 1990 convicting the appellants under Section 304 Part-II read with Section 149 of the Indian Penal Code, sentencing the appellant No. 1 Gurucharan Singh to suffer RI for 10 years and appellant No. 2 Dibakar Singh to suffer RI for 4 years and also to pay a fine of Rs.500/- each in default to suffer R.I. for 3 months each under Section 323 read with Section 149 of the Indian Penal Code.
(2.) The prosecution case, in short, is that one Satyaban Singh lodged complaint with the O.C., Lalgarh P.S. alleging that on 27.5.1990 at about 2.30 P.M. the goat of his elder brother Jugal Singh suddenly started eating the boiled rice of Gurucharan Singh in his courtyard. THE wife of Gurucharan Singh abused the informant and started quarrelling with him. THE informant and his elder brother Jugal Singh told her not to abuse, but, to impound the goat. Gurucharan Singh and his elder brother Dibakar Singh being armed with tabla, bow and arrows and iron rod attacked the informant and his men. Gurucharan Singh with the help of tabla assaulted Arjun Singh on his head. Others being armed with iron rod assaulted the informant and his wife on head and caused bleeding injury. THE accused persons also assaulted and caused injury to Jugal Singh and Methar Singh. Methar Singh sustained bleeding injury on the head. Jugal Singh sustained severe bleeding injury in his waist. Dibakar Singh with the help of axe assaulted Jugal Singh in his waist causing severe injury. Arjun Singh having sustained injury on his head fell down on the ground. Arjun Singh was taken to the hospital, but, before reaching the hospital he succumbed to the injury. After completion of investigation, the charge sheet was submitted. The learned Trial Judge framed charges under Section 148, 304 part-I read with Section 149 and Section 326 read with Section 149 Indian Penal Code. The appellants pleaded not guilty to the charges and claimed to be tried. The learned Judge upon consideration of the materials on record was pleased to convict the appellants and passed the sentence as stated above holding that Gurucharan Singh was very much present at the place of occurrence as per point No. 'A' of the sketch map as stated by the I.O. It was observed by the learned Judge that the non-seizure of the blood stained earth and garments might be a defect on the part of the I.O. of this case, but, the prosecution case would not suffer for such laches on the part of the I.O. The learned Judge has held that Gurucharan Singh assaulted Arjun Singh on his head with a tabla (axe) causing injury and, as a result, Arjun Singh succumbed to the injury. The learned Judge has further observed that from the evidence of P.W. 1 to P.W. 4 it would appear that the proximate cause of death of victim Arjun Singh was his head injury which was caused by accused Gurucharan Singh. It has been held by the learned Judge that from the evidence of P.W. 1 to P.W. 4 it was proved beyond reasonable doubt that all the accused persons had knowledge that the injuries which they caused to the victim Arjun Singh might cause his death and with that knowledge they assaulted Arjun Singh. Being aggrieved by the said judgment of conviction and sentence passed by the learned Trial Judge, the two appellants Gurucharan Singh and Dibakar Singh have preferred the instant appeal.
(3.) Mr. Pradip Kumar Ray, the learned Advocate appearing on behalf of the appellants submits that the oral testimony of the P.Ws did not find corroboration from the evidence of the autopsy surgeon. It is contended that all the four P.Ws were near relatives and it was admitted by the P.Ws that Arjun Singh was working in the house of Bankim Mondal at the material time. It is submitted that Arjun Singh was not present at the time and place of the alleged occurrence and it finds corroboration from the evidence of the P.Ws. It is contended that the learned Trial Judge wrongly placed the onus upon the appellants to prove it beyond reasonable doubt. Mr. Roy submits that there is contradiction in the version of the witnesses as to the infliction of assault upon Arjun Singh and the names of the assailants. Mr. Roy submits that the defence version finds corroboration from the evidence of P.W. 6 Aswini Patra, a local witness, who was not declared hostile by the prosecution. It is submitted that truth came out from the mouth of P.W. 6 Aswani Patra.;