Indrajit Chatterjee, J. - (1.) THIS court is hearing this appeal as against the judgement and order of conviction dated 10 -10 -2012 passed by the learned Additional Sessions Judge, Fast Track 1st Court, Siliguri, Darjeeling in Sessions Trial No. 1/2010 arising out of Sessions Case No. 29(S)2008 wherein both the appellants were convicted in respect of the charge punishable under Sections 326 read with Section 34 and Section 307 read with Section 34 of the Indian Penal Code. Both the accused appellants were sentenced to suffer rigorous imprisonment for five years each and to pay fine of Rs. 1000/ - each, i.d., to suffer further rigorous imprisonment for three months for the offence punishable under Section 326 of the Indian Penal Code and both the accused appellants were also sentenced to suffer rigorous imprisonment for five years each and directed to pay fine of Rs. 2000/ - each, i.d., to suffer further rigorous imprisonment for six months each for the offence punishable under Section 307 of the Indian Penal Code. The court ordered a set off and also ordered that both the sentences will run concurrently.
(2.) THIS Sessions trial arose out of Phansidewa P.S. Case No. 185 of 2007 dated 23/09/2007 under Sections 326/307/34 of the Indian Penal Code. The FIR was lodged by P.W.1, Sarita Tudu, wife of the victim with the said police station on 23 -09 -2007 at about 14 -05 hrs. giving rise to that police station case as stated above. The FIR was written in Bengali script by one Goutam Roy, P.W. 8. In the FIR, it was claimed by the de facto complainant that the incident took place at her house on 21 -09 -2007. She disclosed at the time of trial that in the evening her husband that is the victim, Balku Tudu (P.W.11) returned to his house after the day's work at about 6 -00 p.m. and thereafter went out of the house. At about 11 -00 p.m., the present accused Albinus came to the house of P.W.1 under the influence of liquor and then she requested him to take his meal but he refused and thereafter the said accused and the victim started quarreling with each other. There was also a free fight in between them and hearing the alarm PW 1 and the local people that is PWs 4 and 5 came and they took Albinus, the appellant No. 1 to their house. The victim was then taking rest in the 'verandah' of his house and soon thereafter both the appellants that is Albinus and his wife Sunita came to his house with one "Kalam Chhuri" and the appellant No. 1 caught hold of the victim and the appellant No. 2 started assaulting the victim by that weapon of offence and due to that, the victim received injuries on his head, left hand and on the back. He sustained profuse bleeding. The de facto complainant raised alarm and then the victim was taken to Phansidewa hospital with the help of the local people and from there he was transferred to North Bengal Medical College & Hospital at Siliguri (herein after called as N.B.M.C & H). One explanation of delay was given along with the FIR stating therein that the de facto complainant was busy with the treatment of her husband.
(3.) AFTER the registration of the case, the investigation was taken up by the Investigating Officer, P.W.14. During the course of the investigation, he examined the available witnesses, prepared the sketch map of the place of occurrence, collected the bed -head ticket and the injury report of the victim, seized the alleged weapons of offence as per the seizure list dated 28 -09 -2007 at 22 -05 hrs. It may be mentioned that both the accused persons surrendered at Phansidewa police station on 28 -09 -2007 at 21 -15 hrs. and as per that seizure list, the weapon of offence was seized from the possession of the accused Albinus Minz and Sunita Minz from the house side bush of Sarita Tudu, P.W.1, the de facto complainant. The size of that weapon of offence was 20" long along with butt of the weapon.;