KANCHAN CHAKRABORTY,J. - (1.) THE challenge in this appeal is to the judgment and order dated 25.02.2010 passed by the learned Additional District and Sessions Judge, 3rd Fast Track Court, Alipurduar in Sessions Trial No. 54 of 2008 arising out of Sessions Case No. 158 of 2008 thereby convicting the appellants (1) Ananta Ray, (2) Biswath Ray alias Biswanath Ray, (3) Amulya Ray and (4) Prafulla Ray for committing offence under Sections 304 (Part-II)/34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for seven years with fine of Rs.1,000.00.
(2.) THE judgment impugned has been challenged mainly on the following grounds: (i) that there was inordinate delay in lodging the First Information Report and the explanation offered by the prosecution was not at all convincing; (ii) that the learned Trial Court failed to take into consideration that there was strong animosity between the family members of the appellants and the family members of the de facto complainant; (iii) that the learned Court erred in not acquitting the appellants on benefit of doubt because two views were possible from the evidence on record and facts situation of the case; (iv) that the learned Court failed to appreciate that no witness had actually present in the scene and witnessed the alleged incident; (v) that the learned Court also did not take into consideration that no local people had supported the prosecution case; (vi) that the learned Court erred in believing the evidence of the P.W. 6, which was entirely hearsay as far as alleged incident was concerned; (vii) that the learned Court erred in accepting the opinion of the P.W. 14 ignoring the opinion of the P.W. 9 in respect of the cause of injuries sustained by the deceased; (viii) that the learned Court came to a conclusion, without any support of evidence, that there was quarrel over the issue of "Khaini " (Tobacco leaf) between the deceased and one of the appellants in the market prior to the alleged incident of assault; (ix) that the learned Court was oblivious of the major discrepancies in the statements of the witnesses on materials points, which had shaken the root of the prosecution case; and (x) that the judgment being otherwise bad in law, is liable to be set aside. On 10.09.2005, at 17.30 hours, one First Information Report was lodged by Santosh Roy (P.W. 1) in the Alipurduar Police Station alleging therein that on 05.09.2005 at about 4.00 P.M., his younger brother Parimal Roy, went to Shalkumar market where he asked for tobacco from Amulya Ray (appellant no. 3) but was refused. Over that issue, a quarrel took place between them. Thereafter, Parimal returned back home from Shalkumar Market. At about 7.00 P.M., Amulya and other three appellants came in front of the house of the de facto complainant and called out Parimal. Parimal came out and there was an altercation between him and the appellants. The appellants hit Parimal on different parts of his body with sticks and iron rod. Parimal fell down on the ground being fainted and the appellants fled away hearing hue and cry raised by the family members of Parimal. Injured Parimal was taken to Munshipara Primary Health Centre by Santosh Roy (P.W. 1) with the help of local people. As his condition deteriorated, the doctor referred him to North Bengal Medical College and Hospital on 06.09.2005. Parimal died on 08.09.2005 at 1.00 p.m. A U.D. case, being No. 499 of 2005, dated 08.09.2005 in Matigara Police Station was filed and the dead body was brought back to home after post mortem. It was stated in the First Information Report by Santosh Roy (P.W. 1) that he was alone and there was nobody with him to give his injured brother company and to arrange for his medical treatment. For that reason, he could not lodge the First Information Report in time. On the basis of the said First Information Report, the Alipurduar Police Station Case No. 182 of 2005 dated 10.09.2005 was started. The case was investigated into and, ultimately, ended in a charge sheet under Sections 304/34 of the Indian Penal Code against the appellants. The appellants were arrayed to face charge of culpable homicide under Sections 304/34 of the Indian Penal Code, pleaded not guilty to the charge and faced the trial. The learned Trial Court, upon consideration of the evidence on record, oral and documentary, found that the prosecution brought home the charge under Section 304(part-II) read with Section 34 of the Indian Penal Code and, accordingly, passed the order of conviction and sentence, which is impugned in this appeal on the grounds already mentioned.
(3.) ACCORDING to the First Information Report, Parimal was taken to Munshipara Primary Health Centre after the assailants retreated hearing hue and cry raised by the family members of Parimal. Parimal was referred to North Bengal Medical College and Hospital and was admitted there on 06.09.2005. Mr. Mukherjee, learned advocate for the appellants, contended that Parimal died on 08.09.2005 and a U.D. Case was started. Inquest on the dead body of Parimal was done on 09.09.2005. Post mortem of his dead body was done on 09.09.2005. The First Information Report was lodged on 10.09.2005 at 05.30 p.m. The explanation given in the First Information Report and stated by the P.W. 1, in such situation and circumstance, cannot be said to be sufficient and satisfactory. After inquest and post mortem on the dead body, the First Information Report was lodged although the victim died on 08.09.2005. Mr. Mukherjee further contended that certain factors related to this delay, such as, (I) the inimical relations between the deceased and the appellants, (II) that the deceased was admitted in the hospital in intoxicated condition, (III) that there was evidence to that effect that Parimal fell down from a tree, are also to be taken into consideration in order to ascertain the inordinate delay in lodging the First Information Report. The learned Trial Court did not consider the case from that angle. He referred to the decisions of the Hon 'ble Apex Court in Kishan Singh (Dead) vs. Gurpal Singh & Ors., reported in (2010) 3 SCC (Cri) 1091, Ramesh Baburao Devaskar & Ors. vs. State of Maharashtra, reported in (2007) 13 SCC 501, Om Prakash vs. State of U.P., reported in AIR 2009 SC 944 and Mahtab Singh & Anr. Vs. State of U.P., reported in AIR 2009 SC 2298, in support of his contentions.;