Sankar Prasad Mitra, J. - (1.) This appeal has been directed against the judgment dated 12th November, 1987 passed by the Additional Sessions Judge, 2nd Court, Midnapur under Sessions Trial Case No. VIII of May 1986. By the said judgment the appellants were convicted and sentenced under section 304 Part I/34 of IPC to suffer rigorous imprisonment for ten years with a direction to set off the period of detention in jail custody against the period of sentence. However, by the said judgment accused Urmila Roy alias Tobi Roy, Tarani Roy and Bhanu Das were acquitted. Moreover during the pendency of this appeal the appellant Phani Bhusan Roy expired and as such the appeal has been abated against him. Therefore the appellant before us at present is Sukumar Roy (convict).
(2.) On the basis of FIR lodged by Pashupati Nayek, P.W.1. The formal FIR was drawn up by P.W.13, S.I.Sadhan Chandra Saha, who registered Nandigram P.S. Case No. 2 dated 11.08.1984 vide (Ext.1) series and took up the investigation of the case. The crux of the prosecution case is that on 11.08.1984 at about 12 O'clock the victim Prafulla Nayek, when he was collecting seedling from his land at Mouza Amtala, the accused Phani Bhusan Roy, his son accused Sukumar Roy, his wife Urmila Roy alias Tobi Roy and Tarani Roy, the wife of his elder brother entered into the land with lathi, bhali etc., in their hands and an altercation ensued between the parties when Phani told the victim that he purchased the land and as such he would cultivate the land. In course of altercation the accused Phani struck Prafulla on his head with lathi and accused Sukumar hit Prafulla with a bhali which pierced the abdomen of Prafulla. The local people on hearing hue and cry rushed to the place of occurrence and in the meantime the accused persons took their heels. The informant with the help of villagers took the victim to Nandigram PHC where he was declared dead. The I.O. on the basis of FIR lodged by Pashupati Nayek took up investigation and he visited Nandigram. PHC where he held inquest of the deadbody of Prafulla vide (Ext. 4). The I.O. also visited spot and seized alamats from the place of occurrence vide (Exts. 2 and 6), examined witnesses. He also seized one tangi with stain of mud, one blood-stained bhali from the house of accused Bhanu Das, (Exts. 3 and 7), prepared sketch map, (Ext. 5) and inquest report (Ext. 4). The I.O. also sent the napkin with which the body of the victim, Prafulla was wrapped along with blood-stained weapons to the forensic science laboratory for chemical examination. The I.O. P.W.13, Sadhan Chandra Saha also sent the deadbody to Tamluk Hospital through Constable No.33, Nimai Chandra Biswas for P.M.examination. Since the S.I. Sadhan Chandra Saha was transferred form the station the next man S.I. Gour Gopal Roy, P.W.14 took up the investigation and in course of examination he examined Sankar Bhunia, collected P. M. report and the report of the chemical examiner and ultimately submitted chargesheet against the accused persons under sections 147, 148, 149, 447/304 of IPC. The accused Sukumar Roy was charged under section 304 Part I/34 of IPC and he pleaded not guilt to the charge. The defence case as appearing from the trend of cross-examination as also his examination under section 313 of Cr. PC is that he is innocent and land bearing Dag No.743 at mouza Amtala was purchased by him from Prarulla (victim) and in spite of warning the victim who was uprooting seedling from the said land did not leave the place and as a result altercation ensued and in the course of altercation he attacked Prafulla with a bhali (ballam) and accidentally it pierced the abdomen of Prafulla. It is otherwise claimed by the appellant, Sukumar that he did this in exercise of his right of private defence to protect his property and body. However during the trial the learned Trial Court found sufficient evidence against the appellant and he was pleased to convict him under section 304 Part I/34 of IPC and sentenced him to suffer rigorous imprisonment for ten years.
(3.) Admittedly, the incident occurred on plot No. 743 at mouza Amtala. It is admittedly clear that the accused Sukumar and his brother purchased a portion of plot No. 743 from the victim Prafulla, however, the land was not demarcated. It is claimed by the accused that he purchased the western side of plot No.743. whereas the victim Prafulla claimed that he sold eastern portion of plot No. 743. However, the deed of sale is not before us. Therefore, at best it can be said that the appellant and the victim were co-sharers of plot No.743 where the incident occurred. It is the prosecution case that the victim Prafulla was assaulted by the appellant, Sukumar with a bhali (ballam) which pierced the abdomen and as a result intestine and omentum came out through the wound. The incident of assault upon the victim on that particular date i.e. on 11.08.1984 was seen by P.W.1, Pasupati Nayek, P. W. 2, Nidhiram Nayek both being cousin brother of the victim, P.W.3, Bhudar Chandra Das, neighbour, P. W. 4, Sankar Kumar Bhunia, neighbour, P.W.5, Surapati Jana, labour engaged by Prafulla and P. W. 8, Saktipada Jana, labour also engaged by Prafulla. All of them in chorus voice confirmed that it is the appellant, Sukumar who hit the victim Prafulla with bhali which pierced his abdomen and as a result he died. The testimonies of these witnesses as to the cause of death of the victim find corroboration from Dr.Saroj Ranjan Bhowmick, P.W.9 who held the P.M. examination of the victim. P. W. 9 on dissection of the body of the victim found the following injuries : (i) One penetrating wound 2" x 3/4" x 4" deep over the right side of the abdomen at the level of umbilicus about 2" lateral. Intestine and omentum coming out through the wound. On dissection the wound was seen penetrating to the intestine and injuring the abdominal scrota. The whole peritoneal cavity was full of blood about 2/21/2 lbs. (ii) One incised wound 2" x 1/2" x 3/4" muscle deep over the thenar eminence right palm. (iii) One incised wound over the vault of the scalp right side 21/2" x 1/2" with bone scratch mark.;