Ashim Kumar Roy, J. - (1.) THIS criminal appeal is directed against a judgement and order passed by the learned Additional Sessions Judge, Cooch Behar convicting the appellant Shymal @ Shyamlal Sana, Malin Sarkar, Promatha Saha, Debabrata Bardhan, Sunil Chandra Sakar, Hiralal Saha, Puskar Bardhan, Ahukul Das @ Anukul Sarkar under Section 302/34 of the Indian Penal Code and sentencing each of them to suffer imprisonment for life. During the pendency of this appeal the appellants Hiralal Saha and Puskar Bardhan have expired and accordingly appeal stands abated so far as they are concerned.
(2.) THE prosecution case as is unfolded from the materials on record in brief is as follows : On the date of the alleged incident, i.e. on 25th of November, 1979, a "Natai Puja" was held at the house of one Haridas Saha of village Garbhanga within the police station Tufanganj, Cooch Behar, when over the distribution of 'Prasad' some dispute arose between Badal Pal and the appellant Malin Sarkar. Soon thereafter Subodh Chandra Sarkar, who happened to be the elder brother of Malin Sarkar trespassed into the house of Badal Pal and assaulted his mother Kiranbala Pal with a lathi on her head. After the ends of days work, Paresh Dutta, the brother of Kiranbala returned home got the information about such incident from the inmates of his house and rushed to the house of Badal Pal, his nephew to see his injured sister Kiranbala being accompanied by his two nephews Shankar Dutta and Biswanath Dutta and two others, viz. Bhot Barman and Mahendralal Saha, went to the house of Badal Pal, Paresh Dutta carried a torch with him. THEreafter while they were returning home and reached near the house of Shymlal Saha, all the appellants came there in a body and intercepted them. At first Shymlal Saha assaulted Paresh Dutta with a lathi on his head and as a result he fell down on the ground, when all other accused persons pounced upon him and started assaulting him with the weapons in their hands. THE appellant Anukul Das assaulted him with a dragger in his hand and the other accused assaulted him with lathies. THE entire incident was claimed to have been seen by the witnesses, viz. the two nephews of the victim and others who was with the appellants and the appellants were recognized in the moonlight and in the light of the torch. As the nephews of the victim Paresh Dutta tried to resist the accused persons, they were also assaulted by the appellants with the lathies and they also sustained injuries. THE victim Paresh Dutta succumbed to his injuries at the spot. The aforesaid incident was reported to the local police station by the elder brother of the victim and a FIR was recorded against Shymlal Saha, Promotho Saha, Hiralal Saha, Anukul Das and three/four others for the offences punishable under Sections 148/149/302 of the Indian Penal Code. After conclusion of investigation police submitted charge-sheet for the selfsame offences against the FIR named accused persons and four others, viz. Malin Sarkar, Puskar Bardhan, Debabrata Bardhan and Sunil Sarkar. The appellants were placed on trial before the teamed Additional District and Sessions Judge, Cooch Behar to answer charges under Section 302/34 of the Indian Penal Code. In the trial all the appellants were found guilty for having committed offence punishable under Section 302/34 of the Indian Penal Code and sentenced to suffer imprisonment for life. Hence, this appeal.
(3.) THE learned Counsel of the appellants assailed the order of conviction and sentence on the following grounds; (a) FIR was lodged after long delay. (b) THE appellants Malin Sarkar, Puskar Bardhan, Debabrata Bardhan and Sunil Sarkar are not named in the FIR and have been falsely implicated after due deliberation during trial. (c) Inquest was held before registration of FIR. (d) THE P.W. 2 and P.W. 3 the nephews of the victim claimed to be present at the time of the occurrence but they made no attempt to remove the victim to the hospital and their conduct is quite unnatural. (e) Although the place of occurrence was surrounded by many houses but none of the inmates of the house was examined although available. (f) No blood was seized by the police from the place of occurrence which shows that no incident happened there nor anybody has seen the occurrence. (g) THE prosecution tried to prove its case by examining highly inimical and interested witnesses. (h) No defending weapon was seized. (i) Although P.W. 2 Shankar Dutta and P.W. 3 Biswanath Dutta were allegedly assaulted during the aforesaid occurrence and they suffered injuries and claimed to have been treated by the doctor but no doctor was examined in support of the same. (j) THE evidence of the postmortem doctor, P.W. 16 Suhas Krishna Sinha who admitted in his evidence that death occurred more or less 24 hours before the postmortem and he find no gapping injury the evidence of the alleged eyewitnesses stands falsified. On the other hand, the learned Counsel for the State submitted that there was no delay in lodging the First Information Report because the incident was first reported to the Kumargram Police Station which was situated near the house of the victim and from there the said complaint was forwarded to the Tufanganj Police Station within whose territorial limit the aforesaid incident took place. It was further submitted the Investigating Officer visited the spot nearly 44 hours after the occurrence on 27th November 1979 and as such non-seizure of bloodstained earth from the place of occurrence become absolutely inconsequential. It is further contended both the eye-witnesses have given a detail account of the occurrence during the trial and by grueling cross-examination nothing could be brought out to suspect their testimony. According to the learned Counsel of the State mere allegations of animosity is no ground to discard the evidence of a witness who is otherwise truthful. During the trial the prosecution examined as many as 19 witnesses. Out of those witnesses P.W. 2 Shankar Dutta, P.W. 3 Biswanath Dutta and P.W. 7 Bhot Barman appears to be the key witnesses who according to the prosecution was present at the place of occurrence and witnessed as to how and by whom the victim was assaulted. The P.W. 1 Ramesh Dutta, the maker of the FIR, the P.W. 4 Sachindra Mohan Saha, the P.W. 5 Mahendra Lal Saha, the P.W. 6 Badal Chandra Pal, the P.W. 8 Kamala Rani Dutta had no direct knowledge about the occurrence in which the victim was assaulted. The P.W. 9 Prafullya Kr. Saha, P.W. 10 Jagadish Ch. Aich, P.W. 11 Harendra Dey Sarkar and P.W. 12 Paritosh Dey are seizure witnesses. The P.W. 16 Suhas Krishna Sinha is the Autopsy Surgeon who held the postmortem of the victim. The P.W. 13 Nripendra Nath Sarma is a police constable and P.W. 14 Paramesh Ch. Roy, an Assistant Sub-Inspector of Police and P.W. 18 Prabhas Ch. Chakraborty are formal witnesses. The P.W. 19 J.B. Rakshit is the Investigating Officer of the case and P.W. 15 Niranjan Ch. Das submitted charge-sheet.;