P.N. Sinha, J. - (1.) The Appellants being convicted under Sec. 302/34 of the Indian Penal Code (in short I.P.C.) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 2000/ - in default to suffer further R. I. for two months have preferred this appeal assailing the judgment and order of conviction passed by the learned Additional Sessions Judge, 1st Court, Bankura. The prosecution story was started on the basis of written complaint (FIR) submitted by Haradhan Kundu (P. W. 3) at the Gangajalghati P.S. on 24.9.95 at 4.15 P.M. It was alleged in the FIR that, on 20.8.95 at 1.30 P.M. a few goats were damaging the paddy in the field of deceased Kinkar Kundu in village Radhamadhabpur. The deceased Kinkar Kundu was able to catch two goats and he was returning back with the said goats along with Kalipada Kundu (P. W. 2), Mihir Mondal (P. W. 1) and Ashok Mondal (P. W. 6). At that time, both the Appellants came before Kinkar Kundu and demanded release of the goats. As kinkar Kundu was not willing to release the goats it resulted into altercation, and thereafter, both the Appellants struck on the head of Kinkar Kundu with lathi and rod. Kinkar Kundu sustained bleeding injury on his head due to the assault and fell down there on the road. Hearing the scream raised by Kinkar Kundu Some villagers came there and the informant P. W. 3 also came there, the accused persons in the meantime managed to escape^ from the place of occurrence. P.'.W. 3 with the assistance of villagers carried away Kinkar Kundu to the police station and thereafter he was admitted at Amarkanan hospital and on next day he was transferred to Bankura Medical College and Hospital. Kinkar Kundu was discharged from Bankura Medical College hospital on 29.8.95 and he was brought back to home. He felt pain at the place of his wound from the morning of 5.9.95 and he was again admitted at Bankura hospital on that day. Kinkar Kundu died at Bankura Medical College and Hospital on the night of 5.9.95. On the basis of the FIR lodged by P. W. 3 Gangajalghati P.S. Case No. 45 of 1995 dated 24.9.95 under Sec. 304/34 of the I.P.C. was started against both the Appellants. After completion of investigation the Investigation Officer (in short I.O.) P. W. 13 Dilip Karmakar submitted charge -sheet Sec. 304/34 of the I.P.C. against both the accused persons. In the trial the learned Additional Sessions Judge framed charge under Sec. 302/34 of I.P.C. against the Appellants and convicted them and sentenced them to suffer imprisonment for life as mentioned earlier.
(2.) The prosecution examined 13 witnesses in all in order to. prove it case namely, P. W. 1 Mihir Mondal, P. W. 2 Kalipada Kundu, P. W. 3 Haradhan Kundu (informant and son of deceased), P. W. 4 Radhamadhab Pal (post mortem surgeon), P.W. 5 Biswanath Ghosal, P. W. 6 Ashok Mondal, P. W. 7 constable Alok Ranjan Bera, P. W. 8 Dilip Kundu, P.W. 9 Santosh Garai, P. W. 10 Dr. Sankar Brato Sarkar, P. W. 11 S.I. of Police Pitadhar Mondal, P. W. 12 Dr. J. N. Dey and P. W. 13 S. I. of Police Dilip Karmakar (I.O.) Out of the aforesaid 13 witnesses P. W. 1, P. W. 2 and P. W. 6 were accompanying the deceased Kinkar Kundu after catching two goats which belonged to the Appellants. P. W. 3 came to the place of occurrence just after the incident of assault was over. Evidence of P. W. 7, P. W. 9 and P. W. 11 do not require any discussion as they practically stated nothing. P. W. 11 only received the written complaint from P. W. 3 and registered the FIR starting the aforesaid Gangajalghati P.S. case and directed P. W. 13 to start investigation. P. W. 5 were declared hostile witnesses as they did not support the prosecution case in some material parts. After going through their evidence we find that though they were declared hostile witnesses their evidence require discussion as we get some light into the alleged incident from their evidence.
(3.) Evidence of P. W. 1 reveals that on 20.8.95 at about 1.30 P.M. they went to the field to drive away the cattle which entered into their field. Deceased Kinkar Kundu, Ashok Pal and Kalipada Kundu accompanied him and at field they caught two goats. Those two goats belonged to the Appellants. When they were returning back to the village with those two goats kinkar Kundu was assaulted. He did not state as to who assaulted Kinkar Kundu and thereafter he 'was declared hostile witness by prosecution. Though he was declared. a hostile witness his ' evidence clearly establishes the genesis of the prosecution case that goats of Appellants were damaging paddy of deceased when Kinkar Kundu accompanied by P. W. 1 and others caught two goats and when they were coming back to village the deceased was assaulted. His evidence in cross examination reveals that the incident took place on the pitch road in front of house of the Appellants. His evidence further establishes the prosecution case that after admission into hospital Kinkar Kundu returned back to home but, thereafter again, he was admitted in the hospital. P. W. 2 stated that as some goats were damaging and eating crops kinkar Kundu went to his field to drive out goats and he caught two goats and was returning back to village with two goats. At that time both the Appellants asked him to release the goats as the goats belonged to them but Kinkar Kundu refused to give the goats to the Appellants. Thereafter, both the Appellants assaulted Kinkar Kundu on his head with lathi. Kinkar Kundu was injured and was taken to the police station and he lodged a diary and thereafter he was sent to Amarkanan PHC for treatment. He supported the prosecution case by stating that he, P. W. 1 and P. W. 6 were with deceased Kinkar Kundu at the time of incident. His cross examination reveals that the field in which the goats were damaging crops was about 100 cubits from the end of the village. The incident of assault lasted for only 1V2 minutes. Villagers rushed to the spot immediately after the incident and he stated that villagers means the persons who were residents near the place of occurrence, it further appears from his evidence that Kinkar Kundu came back to village from hospital seven days after and remained in village for two days. P. W. 3, P. W. 6 and P. W. 8 fully corroborated the prosecution case relating to assault on the head of deceased Kinkar Kundu by the Appellants. Their evidence reveals that when the deceased was returning back with two goats accompanied by P. W. 1, P. W. 2 and P.'W. 6 the Appellants demanded release of the goods. Kinkar Kundu refused to handover the goats to the Appellants and it resulted into an altercation between them and thereafter both the Appellants assaulted the deceased with lathi. The deceased fell down on the road receiving the lathi blow and there was bleeding from his place of injury. All these witnesses stated that thereafter the victim was taken to Gangajalghati P.S. where Kinkar Kundu himself narrated the incident to police officer and the police officer reduced the said information into the generally diary (ext. 3). Their evidence further discloses that from police station the victim was sent to Amarkanan PHC, and next day, he was sent to Bankura^ Medical College and Hospital where he was admitted till 29.8.95. After discharge Kinkar Kundu came back to his home but, on 5.9.95 he felt pain from the place of his old injury on head and he was again admitted at Bankura Medical College and Hospital and died on the same night. Evidence of P. W. 3 reveals that after completing the 'sradh' ceremony and rituals he lodged the FIR (ext. 1) on 24.9.95. He explained the cause of delay of the lodging FIR in this manner and further stated that he expected police action on the basis of diary lodged by his father on 20.8.95, but as the police did nothing he lodged the FIR.;