ASHIM KUMAR BANERJEE,J - (1.) IN the village Dignagar, Durlavpara under Police Station Kotwali in the district of Nadia on the day of Dol Yatra in 1985, one Radharani Durlav was killed by a group of persons whereas his husband was injured along with his son Subas. The trouble cropped up as one person in the name of Naru had a love affair with his neighbour Arati. On this issue there had been altercations between two groups. Another villager Haju assaulted Arati. The accused chased Haju when Haju took shelter in the house of Shibani. The accused thought that Haju took shelter in the house of Tarapada and Radharani. They entered the house of Tarapada and Radharani. They dragged Radharani from her room and assaulted both of them. Radharani succumbed to injury and died at the Hospital on the next day. Tarapada, however, managed to save himself. He was treated in Saktinagar Hospital. In the process the accused also assaulted Subhas being the son of Tarapada and Radharani on their way back. They also assaulted Narayan. One Subal Durlav lodged an FIR on March 7, 1985 stating that at about 3 p.m. Srinath Durlav, Jharu Durlav, Sukesh Durlav, Badal Durlav (Petkata), Balaram Durlav (Boro) and other five persons had attacked Tarapada's house being armed with sharp weapons and had seriously injured Tarapada, Radharani, Subhas, Narayan and others. All of them were admitted in Saktinagar Hospital in an unconscious state. Radharani died on the next day at about 10 a.m in Saktinagar Hospital. Altogether eight persons were charged for the offence. Out of them Badal Durlav alias Boro Badal died before facing trial. Tapan Biswas, Sribash Durlav alias Srinath Durlav, Kama Durlav, Jharu Durlav, Sukesh Durlav, Chandra Durlav, Gopal Durlav were charge sheeted. Balaram was, however, left out the reason, however, is not known to us. Altogether eighteen witnesses were examined by the prosecution whereas the defence examined two witnesses. The learned Session Judge held Kama, Jharu and Srinath responsible for death of Radharani. The learned Judge also convicted Jharu under S.326 of the Indian Penal Code. Kama, Sukesh, Gopal, Jharu and Chandra were also convicted under S.148 of the Indian Penal Code. The learned Session Judge, however, acquitted Tapan from all the charges.
(2.) HENCE , this appeal. Mr. Debabrata Roy, learned counsel appearing for the appellants being all six convicts contended as follows : - (i) There had been contradiction on the issue with regard to time of death. (ii) No sketch map was prepared and / or produced during trial. (iii) It was alleged by the prosecution that the victim was hit by Chhipda (chopper) whereas such weapon was neither recovered nor produced during trial. (iv) Bed Head Ticket of the victim Radharani was not produced during trial. (v) There had been contradiction with regard to medical evidence as the injury did not tally as per the medical evidence and the inquest report. (vi) There had been considerable delay in lodging the FIR. (vii) The FIR was contrary to the deposition and / or the charge framed by the prosecution. (viii) Some of the villagers being the material witnesses were not at all examined Haju was examined by the Police, he was, however, not called during the trial to adduce evidence. (ix) Definite charge with regard to the cause of death was not brought.
(3.) TO support his contention Mr. Roy relied on the following decisions : -;