- (1.) This appeal is directed against a judgement dated 26th September, 2006 passed in Sessions Case No. 130(2) of 2005 corresponding
(2.) To Sessions Trial No. VI (May) of 2005 arising out of Hogalbaria P. S. Case No. 128 of 2004 dated 29th November, 2004 by which the learned Additional Sessions Judge, Fast Track, Court No. I, Krishnagar, Nadia, held all the six accused persons guilty of offences punishable under Section 304 (Part I) and Section 323 of the Indian Penal Code read with Section 34 thereof. By an order dated 27th September, 2006 the learned trial Court sentenced each of the convicts to rigorous imprisonment for a period of ten years as also to pay a fine of Rs. 2,000/- each, in default to suffer further rigorous imprisonment for four months each for the offence punishable under Section 304 (Part I) read with Section 34 of the Indian Penal Code. Each of the convicts was also sentenced to suffer rigorous imprisonment for a year for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code. Both the sentences were however directed to run concurrently. The facts and circumstances of the case briefly stated are as follows. Kartick and his son Krishna on 28th November, 2004 in the morning at about 9.30 a.m., were engaged in lifting water with the help of a pump from their low land and the water was being shifted to nearby pond belonging to them. Barun one of the accused persons took exception to the aforesaid act of the father and the son. He wanted the pump to be shut down but Kartick refused to do so. An altercation followed between them. Barun tried to stop the pump. He was prevented from doing so. Enraged by this act of Kartick, Barun abused him. Kartick, it appears, slapped on the face of the said Barun. Barun retreated only to return with all his brothers and their father Raghunath with deadly weapons like hasua, dao, lathi etc. They pounced upon the said Kartick. Krishna naturally tried to save his father. Kartick was indiscriminately assaulted by all of them. Krishna was also assaulted. While the assault was being made, Uttam suddenly with a dao, in his hand, dealt a blow on the head of the said Kartick. Both Kartick and Krishna were shifted to Karimpur Hospital. Considering the gravity of the injury suffered by Kartick, he was referred to Saktinagar Hospital and from there to Nilratan Sarkar Hospital at Calcutta. Kartick succumbed to his injury on 29th November, 2004. Prior to the death on 29th November, 2004 a written complaint had been lodged on the basis whereof Hagalbari PS case was started. The accused persons were arrested. On the basis of information furnished by the accused Uttam, in custody, a dao was recovered from his house. The accused persons were charged of the offences punishable under Sections 302 and 324 both read with Section 34 of the Indian Penal Code. The learned trial Court, however, held them guilty of the offences punishable under Sections 304 and 323 both read with Section 34 of the Indian Penal Code as more fully indicated hereinabove. Thirteen witnesses were examined. P.W.1, Krishna, the son of the deceased is the de facto complainant. P.W. 3 is a brother of the deceased. RWs. 4, 5, 9 and 10 are independent eyewitnesses but each one of them turned hostile. P.W. 11 is the autopsy surgeon. P.W.13 is Dr. Saha attached to Karimpur Hospital who had extended medical aid to the P.W.1. Rest of the witnesses are seizure witnesses and official witnesses including the investigating officer. Mr. Ray, the learned Senior Advocate appearing for the appellants, advanced the following submissions :- (a) The written complaint was belatedly lodged. He also commented upon the fact that the reasons disclosed in the written complaint explaining the delay was not supported during the trial by the P.W.1. (b) Taking a clue from the evidence of P.W. 3, Mr. Ray contended that both Krishna and Kartick were engaged in pumping water from a low land belonging to the accused persons, which naturally was protested against, whereupon Kartick far from resenting, slapped Barun, which sparked off the incident in which Kartick suffered fatal injury.' (c) He drew our attention to the evidence of the autopsy surgeon and contended that it would appear that the injury No. 9 in fact was the fatal injury. According to him, the injury No.10 and 11 have separately been described but they, in fact, relate to the injury No. 9. According to him, the rest of the injuries No. 1 to 8 are relatively minor injuries which would go to show that the assailants did not have any common intention or knowledge that they were likely to kill the victim Kartick.
(3.) The injury No. 9 admittedly was inflicted by the accused Uttam. Mr. Ray contended that it may be the individual decision of Uttam which he executed at the spot but for that, others cannot be held responsible. He, therefore, contended that the rest of the accused persons, who already have suffered imprisonment for more than of two years, should leniently be dealt with. Mr. Mitra, the learned Advocate appearing for the State, disputed the submissions advanced by Mr. Ray. He contended that there is nothing on record to show that the deceased or his son Krishna (P.W. 1) was drawing water from the low land belonging to the accused persons. As a matter of fact, no such case was suggested to the P.W. 1. Reliance placed by Mr. Ray upon the evidence of P.W. 3 for the purpose of showing that the land belonged to the accused is misplaced because the case of the defence was that the P.W. 3 was not present at the place of occurrence. That is the suggestion given to him. If the land had belonged to the accused that case would have been suggested to the P.W. 1 which was never done. Therefore the story that the land belonged to the accused persons cannot be supported at all. As regards delay in lodging the written complaint, Mr. Mitra contended that there is both oral and documentary evidence to show that the de facto complainant Krishna suffered injury on his head. He, as a matter of fact, had become senseless at the place of occurrence about which he deposed and the same was never challenged. On the contrary, the doctor attached to Karimpur Hospital was examined and he deposed in support of the injury suffered by the P.W. 1. He contended that a person, who himself was injured, cannot be blamed, if he went to the police station within 24 hours from the date and time ot the incident. Admittedly, the police station was more than twelve kilometer away from the place of occurrence.;