KANCHAN CHAKRABORTY,J - (1.) THIS appeal is directed against the judgment and orders dated 29.4.2010 and 30.4.2010 passed by the Ld. Additional District & Sessions Judge, FT court no-1, Dinhata in Sessions Case no. 217 of 2006 S.T. no-7(VI) of 2008 thereby convicting the appellants under Section 148, 325/149 and 304 (part II)/149 of the IPC and sentencing them to suffer rigorous imprisonment for five years with fine of 3000.00 for the offence under section 304 (Part II)/149 of IPC, R.I. for two years and pay fine of Rs. 2000.00 each for committing offence under Section 325/149 of IPC and R.I. for one year and to pay a fine of Rs. 1000.00 each for the offence punishable under Section 148 IPC, respectively, with a direction that all the sentences should run concurrently.
(2.) RAFIQUL Islam Khandakar lodged one F.I.R in Dinhata Police Station on 25.11.2004 stating therein that about 15 days prior to 19.11.2004, he and his brothers cut down a velly tree which had grown over their ancestral land. On 19.11.2004, at about 11 A.M. to 11 noon, the appellants being armed with Dao, axe, iron rod, lathi etc. tried to take away the velly tree which was cut down by Khandakar brothers and kept in their land. Safiqul Islam Khamdakar and Ekramul Haque Khandakar, the brothers of Rafiqul Islam tried to stop the appellants from taking away the velly tree. The appellants assaulted Safiqul Islam Khandakar and Ekramul Haqe Khandakar, on the land of one Altab, with iron rod and wooden baton on their heads and different parts of their body. Being attracted by the alarm of Safiqul and Ekramul, Apia Bewa, their mother, Babu Khandakar, their brother and Ramicha Bibi wife of Rafiqul Islam Khandakar rushed to the place of occurrence in order to save Ekramul and Safiqul. They were also assaulted by the appellants severally. Ekramul and Safiqul sustained serious injuries on their head and fell unconscious on the ground. Apia Bewa also sustained fracture injury on both of her hands. Rafiqul Islam and his neighbours took Ekramul, Safiqul and Apia Bewa to Dinhata for their medical treatment. Safiqul and Ekramul were referred to North Bengal Medical College and Hospital at Siliguri while Apia Bewa was referred to M.J.N. Hospital at Cooch Behar. Since Rafiqul Islam Khandakar was busy with medical treatment of his brothers and mother, he could not filed the F.I.R. before the 25.11.2004. On the basis of said F.I.R. lodged by Rafiqul Islam Khandakar, Dinhata police station case no. 222/2004 dated 25.11.2004 was started under Section 147, 148, 149, 325 and 326 of IPC. Amongst the injured, Safiqul Islam Khandakar died on 3.12.2004 at Neuro Hospital and C.T. Scan Centre private Limited, Pradhannagar, Siliguri. Section 304 of IPC was added to because of his death. Charge-sheet was filed under the above mentioned Sections and the trial commenced because the appellants pleaded their innocence. The appellants was arrayed to face charges under Section 148, 325/149 and 304/149 of the IPC. Twenty six (26) witnesses were examined by the prosecution in course of trial on behalf of the prosecution. Huge number of documents was also admitted into evidence and marked exhibit 1 to 19/1 on behalf of the prosecution. The defense preferred not to adduce any evidence excepting one witness namely Soroj Kumar Ray as D.W. 1.Upon considering of the evidence on record and materials placed before it, the learned Trial Court found that the prosecution established the case against the appellants beyond the all possible doubts and accordingly, recorded their conviction and sentence by the judgement and orders which are impugned in this appeal. The appeal has been assailed, mainly, on the following grounds : i) that the learned Judge was oblivious of the fact that the First Information Report, according to the P.W. 1 was lodged on 20.11.2004 but the F.I.R. shows that it was registered on 25.11.2004 indicating that the initial F.I.R. dated 20.11.2004 was suppressed and subsequently by a new F.I.R. was introduced to implicate the present appellants falsely; ii) that there was also delay of four days in despatching the F.I.R. to the Magistrate by the police station which, obviously, created doubt on the veracity of the prosecution case; iii) that Ekramul Haque Khandakar, one of the injured, although was examined as P.W. 22 was not examined by the investigating officer; iv) that the learned Court failed to appreciate the contradictions and inconsistencies in the statements P.W. 1, P.W. 3. P.W. 7, P.W. 8, P.W. 10, P.W. 11, P.W. 14 and P.W. 22 on material facts; v) that the learned Trial Court failed to appreciate also that the P.W. 3 only mentioned names of five accused persons who had a scuffling with the injured brothers of the P.W. 1 and that too, said five persons were not named by the P.W. 3 to the I.O. vi) that the learned Trial Court failed to take note of the fact that none of the witnesses disclosed names of the assailants to the officer who performed inquest of the deceased. vii) that the vital witnesses of the prosecution were examined by the I.O. after lapse of three months from the date of registration of the F.I.R. and, as such, their version should not have been accepted by the learned Trial Court; viii) that according to the prosecution case 8 to 10 persons gathered at the place of occurrence at the time of incident but no one tried to intervene which appeared to be not common and usual; ix) that the judgment being otherwise bad in law, is liable to be set aside;
(3.) MR . Souvik Mitter, Mr. Avishekh Sinha and Anasuya Sinha, learned Counsels appearing on behalf of the appellants put much stress on the fact that the date of occurrence was 19.11.2004 but the F.I.R. was lodged long thereafter on 25.11.2004. Again, the F.I.R. which was lodged on 25.11.2004 was despatched by the police station to the Court of Magistrate on 29.11.2004. There was inordinate delay not only in lodging the F.I.R. but despatching the same to the Magistrate. This fact altogether created suspicion about the genuinety of the prosecution case as sufficient time was provided to the prosecution to introduce improvements, embellishment and to set up to distorted version of the occurrence. In support of their contention, a decision of the Hon 'ble Apex Court in Ishwar Singh Vs. State of West Bengal, reported in AIR 1976 SC 2423 has been referred to.;