KANCHAN CHAKRABORTY,J. - (1.) THIS appeal is directed against the judgment and order of conviction dated 12.05.2010/13.05.2010 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Rampurhat, Birbhum, in sessions Trial No. 5(March)/2009 thereby convicting the appellant under Section 304(Part-II) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for four years and to pay fine of Rs.2000/- with default clause. Ms. Rupa Bandyopadhyay, learned amicus curiae for the appellant, has contended that the judgment impugned is based on the direct testimony of three eyewitnesses. But, the learned Trial Court failed to consider that there were many betel shops near the place of occurrence and the owners of those betel shops were not cited and examined as witnesses. The witnesses examined on behalf of the prosecution mostly are not ocular witnesses. Their evidences are hearsay in nature. The P.W. 4 was declared hostile. Ms. Bandyopadhyay further contended that the doctor, who conducted post-mortem over the dead body of the deceased, opined that the injuries detected by him might have been caused if a person fell on rough and hard substance. THIS apart, she contended, that the First Information Report was lodged after holding inquest over the dead body, which, obviously, casts shadow of doubt as to the genuineness of the First Information Report. Ms. Bandyopadhyay contended that the appellant has been sentenced to suffer rigorous imprisonment for four years, out of which he has already undergone two years and five months in custody in connection with this case. After statutory remission, much time is not left for him to remain inside the jail in connection with this case. Therefore, she contended, the sentence of the appellant be reduced to the period he has already undergone.
(2.) ON 06.02.2008, one First Information Report was lodged with Naihati Police Station alleging therein that on 05.02.2008 at about 07.45 p.m. at Paikpara More, the appellant picked up quarrel with the father of the de facto complainant Sahabul Sk. over a trivial issue. The appellant Khokan Halder started assaulting Firoz Sk. with fists, blows and kicks. Firoz fell down on the road and the appellant dashed his head on the morrum road violently. The incident was witnessed by Kurban Sk. and others who took Firoz Sk. to his house. Seeing the injuries on the backside of the head, left hand and on the leg, Kurban Sk. and others thought it proper to take Firoz to dispensary in the next morning as there was no dispensary nearby. But, at about 10.30 p.m. Firoz Sk. succumbed to his injuries. A case was initiated on the basis of the said First Information Report. The case was investigated into and ended in a charge sheet under Section 304 (Part-II) of the Indian Penal Code. The appellant pleaded not guilty and, as a result, the trial commenced. The prosecution examined, as many as, 10 witnesses in course of trial. Some documents, such as, First Information Report, Inquest Report, Post Mortem Report, Dead Body Challan, Sketch Map of the Place of Occurrence, etc. were admitted into evidences and marked exhibits on behalf of the prosecution. The learned Trial Court upon consideration of the evidence on record, oral and documentary, came to the findings that the prosecution brought home the charge under Section 304(Part-II) of the Indian Penal Code against the appellant and recorded conviction and sentence by the judgment and order dated 12.05.2010/13.05.2010, which is impugned in this appeal. Mr. Das, learned advocate for the State of West Bengal, contended that the judgment impugned is not only based on testimonies of eyewitnesses but also supported by the medical evidence. The incident happened in a spar of moment and the learned Trial Court has rightly convicted the appellant under Section 304(Part-II) of the Indian Penal Code. There is no question of taking lenient view in respect of sentence imposed by the learned Trial Court considering the way the alleged incident took place. In a case like this, the evidence of the eyewitnesses and the medical evidence is very important and it appears from the judgment impugned that the learned Trial Court recorded conviction and sentence basing on the testimonies of eyewitnesses as well as the medical evidence. The main eyewitness of the incident is the P.W. 3, Kurban Sk. He has given a vivid description of the incident and entirely supported the facts stated in the First Information Report, (Ext.-1). The name of Kurban Sk. has also mentioned in the First Information Report as the eyewitness. He was in the betel shop of Dulal Dutta, the P.W. 5, with the deceased Firoz Sk. at the relevant point of time. Naturally, none but he and Dulal Dutta, the P.W. 5, would say better than others about the incident. He stated categorically that while Firoz was buying betel leaf from the betel shop of Dulal Dutta at Paikpara crossing, the appellant came there and wanted to buy betel leaf first. Over this issue, there was an altercation between Firoz Sk. and Khokan Halder. Khokan Halder suddenly started assaulting Firoz by fists, blows and kicks and, thereafter, caught hold of Firoz Sk. by his hair and dashed his head on the morrum road. Firoz sustained severe injuries on the back of his head. The statement of P.W. 3 was fully supported and corroborated by the P.W. 5, Dulal Dutta, the owner of the betel shop, wherein the incident had taken place. He stated categorically that the appellant started quarreling with Firoz Sk. and assaulted Firoz Sk. with fists, blows and kicks. Khokan caught hold of Firoz by his hair and dashed his head on the morrum road. Firoz sustained injuries on his head. There is another witness to the incident, who is P.W. 7. The P.W. 7 stated that the incident took place at about 07.30 p.m. at Paikpara Paschim in front of the betel shop of Dulal. There was a quarrel between the deceased Firoz and the appellant Khokan on the issue of Pan Masala and the appellant assaulted Firoz with fists, blows and kicks and dashed his head by holding his hair on the road and, as a result, Firoz sustained severe injuries. He also supported the prosecution that Kurban Sk. brought Firoz to his house by a rickshaw trolley. It is true, in the instant case, inquest of the dead body was done prior to lodging of the First Information Report. This fact was discussed by the learned Trial Court elaborately. This Court thinks that this irregularity had not affected the genesis of the prosecution case and the prosecution case cannot be thrown out simply because of this fact. In the instant case, evidence of P.W. 6, Dr. S. Poddar, is very relevant also. The P.W. 6, the doctor who conducted post mortem over the dead body of Firoz Sk. on 06.02.2008 and found following injuries: (1) Bleeding from nose and mouth, (2) One abrasion 1/2 " X 1/2 " over right chiick, (3) One abrasion over glutel region measuring 1 ' X 1 ', (4) Lacerated wound measuring 2 " X � " bone deep placed obliquely over occipital region with local haemotomae, (5) Sub arachnoid intra cranial haemorrhage (Skull Haemorrhage). The P.W. 6 opined that the death was caused due to effects of the above noted injuries which were anti-mortem in nature. The post mortem report was admitted into evidence and marked Exbt. 4. He has stated further that such type of injuries might be caused by fists, blows and kicks and if somebody dashed the backside of the head on morrum road by holding hair. The P.W. 6 in his crossexamination has not stated anything, which goes to show that the death of Firoz was caused owing to factors or reasons other than the injuries detected by him.
(3.) THE P.W. 7 is the scribe of the First Information Report. He came to know about the incident from Sahabul Sk., the P.W. 1, and reduced the First Information Report in writing as per his instruction. THE P.W. 8 was not an ocular witness. He came to know about the incident on the next date. THE P.W. 10 is the Investigating Officer of the case who had been to the place of occurrence for the purpose of investigation and prepared the sketch map of the place of occurrence (Exbt. 6). He also performed inquest over the dead body of the deceased on 06.02.2008 (Exbt. 3). He sent the dead body to the Rampurhat S.D. Hospital Morgue vide dead body challan (Exbt. 5), collected the post mortem report, examined available witnesses and, thereafter, submitted charge sheet. I have carefully gone through the cross-examination of the P.W. 10 and found that he did not seize any wearing apparels of the deceased and bold stained earth of the place of occurrence. Although the viscera preserved but not sent to the F.S.L. for chemical analysis. There is nothing in the cross-examination of the P.W. 10, which, however, casts shadow of doubt on the prosecution case. The learned trial Court while recording conviction of the appellant entirely relied on the evidence of Kurban Sk., P.W. 4 and Dulal Dutta, P.W. 5. The learned Court also put much reliance on the testimony of Dr. S. Poddar, P.W. 6. To be stated precisely, the judgment impugned was passed basing on the evidences of two eyewitnesses supported by medical evidence. This apart, the other witnesses also supported prosecution case although they were not ocular witnesses. They are post-incident witnesses but their evidences, as a whole, supported the prosecution case. It was contended by Ms. Bandyopadhyay, the learned amicus curiae for the appellant, that persons having betel shops near the place of occurrence were not cited as witnesses and examined by the prosecution. It is settled principles of law that the quality of evidence is to be counted not quantity. In Sandeep vs. State of U.P., reported in 2012(3) AICLR 247, the Hon 'ble Apex Court held that all the witnesses of prosecution need not be called and it is sufficient if witnesses who are essential to the unfolding of the narrative are examined. In the instant case, the P.W. 4 and P.W. 5 are the eyewitnesses of the incident. Their evidences appear to be sufficient for the prosecution to bring home the charge against the appellant. Besides their evidences, the medical evidence supported the prosecution case. The post-incident witnesses also supported the prosecution case. The learned Trial Court had taken everything into consideration even the laches on the part of the Investigating Officer of the case for not sending viscera to the F.S.L. for chemical analysis and rightly came to a conclusion that the appellant caused fatal injuries on the head of Firoz Sk., the deceased, and, as a result, Firoz Sk. died. ;