Amit Talukdar, J. - (1.) This appeal is directed against the judgment and order dated 20.4.85 passed by the learned Sessions Judge, Malda in Sessions Trial No. 5 of 1985, thereby finding the appellant to have been guilty of the charge under section 304 Part-II of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- in default to suffer further two years rigorous imprisonment.
(2.) The prosecution case relates to an incident of 06.12.82 at about 13.00 hours in Mahisal Mouza under Gazole Police Station in the District of Malda when PW.l was ploughing his land the appellant with his brothers Subal Halder, Naba Haider, Sukumar Halder and Gopal came there and told him that he would not allow PW. 1 to plough the land till they had caught the fish from there and as they did not agree there was an altercation and the appellant threw a bamboo pole towards his brother Ramen Biswas which hit in the belly and he fell on the land and thereafter, he removed his brother to home and consulted with the compounder of Bamongola health centre and on the next morning sent his brother to Modipukur Hospital with his another brother, PW. 5 and thereafter lodged the FIR scribed by PW.2. Ramen Biswas died on the next day at about 8.00 in the evening.
(3.) The prosecution in order to prove its case examined PW.l the maker of the FIR and the brother of deceased who witnessed the entire occurrence. PW.2 was related to the deceased family and was the scribe of the FIR (Ext.l.). PW.3 another eye-witness was cultivating his own land and on hearing a commotion went to the land of PW.l and found that the appellant threw a bamboo pole towards deceased Ramen Biswas which hit him on his abdomen after Ramen Biswas fell down PW.l caught hold of the said bamboo pole and attacked and caused fracture injury on the head of the appellant. PW.3 further deposed that he and one Kalipada Biswas came to the place of occurrence when he was requested by PW.l to guard his plough and bullock while he took his brother Ramen Biswas home and the accused persons left the place by their boat. PW.4 who has land contagiously to that of PW.l also deposed while cultivating on the date of occurrence heard a shout and went to the place of occurrence and saw Ramen Biswas felling on the ground. The appellant threw a bamboo pole towards Ramen which hit him on his abdomen. He corroborates PW.3 with regard to the attack by the appellant and others on PW.l and his brothers and the evidence of PW.3 with regard to PW.l catching hold of the bamboo pole and hitting appellant on his head causing an injury and corroborates the PW.5 a brother of PW. 1 and deceased Ramen Biswas, signed on the Inquest Report conducted by the police. His cross-examination was declined. PW.6, PW.7 and PW.8 were all tendered. PW. 9 signed on the seizure list in connection with the sale deeds and documents. PW. 10 was a pharmacist of Bamongola P.H.C. His cross-examination is also declined. PW.11 conducted the post-mortem examination on the dead-body of Ramen Biswas. He found one abrasion over the right side of umbilical region and found ruptured intestine and right kidney was ruptured. Death, in his opinion was due to the effect of the injury which was ante-mortem and homicidal in nature and that such injury can be caused if a bamboo pole for rowing a boat is thrown from a distance. PW.12 recorded the formal FIR (Ext.l). In his cross-examination he stated that the records of G.R. Case No. 1712 of 1982 was shown and he admitted that on the basis of the direction by the learned Magistrate he drew up the formal FIR and started Gajol P.S. case No. 6 dated 22.12.82 against Sukdeb Biswas, and five others under sections 147/148/149/447/379/307 of the Indian Penal Code. The said formal FIR was marked as Ext. A. He also forwarded the charge-sheet submitted in this case. PW.13 an A.S.I. of Police conducted the inquest over the body of deceased Ramen Biswas. PW.14 took up the investigation of the case and after completion of the same submitted the charge-sheet. PW.15 was the Medical Officer of the Bamongola P. H. C. where the deceased Ramen Biswas was at first admitted and his treatment was made. He also stated that he examined the appellant on the same day in the evening at 7.15 p.m. where he was admitted as an indoor patient and found injury on the head of the appellant along with other injuries and he was interned in the health centre till the time of his discharge on 27.1.83.;