The court emphasized the importance of considering statements made shortly after an incident as part of the same transaction under Section 6 of the Indian Evidence Act, 1872, and the doctrine of res gestae.

Toufique Uddin, J. :

1. This appeal arose out of an order of conviction under Section 304(1) of the Indian Penal Code and sentence to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1000/- in default to suffer further simple imprisonment for six months passed by the learned Additional Sessions Judge, 3rd Court, Midnapore by his judgement and order dated 17th May, 1989 in Sessions Trial No. 22 of February, 1987.

2. In the background of this appeal, the fact in a nutshell is that the defacto complainant Hiren Mahato lodged a complaint with Jhargram P.S. on 20.05.86 stating that on the date of incident at about 12 noon, he was engaged in his own house with some work while Haripada Mahato and Kalipada Mahato attacked the complainant being armed with iron rod and lathi. They assaulted the informant on his hands, legs and head. As a result, he sustained blood injury on his head. He fell down on the ground and lost sense. Thereafter, the accused person looted the belongings from the house of the informant and fled away. Subsequently, the villagers came and took the injured person to Manickpara beat house where he narrated the incident before the Police. Thereafter, he was sent to Manickpara Hospital. Therefrom he was shifted to Jhargram hospital. On receipt of written complaint, the Jhargram P.S. Case No. 11 dated 20.05.86 was started against the present two accused persons under Section 447/325/506 and 379 of the Indian Penal Code. Charge-sheet was submitted under Section 447/325/506 and 304 of the Indian Penal Code.

3. The case was committed to the learned court of sessions.

4. On hearing of both the sides, charge under Section 304(1)/34 of the Indian Penal Code was framed against both the accused persons. The contents of the same were read over and explained to them when they pleaded not guilty and claimed to be tried.

5. The prosecution examined as many as 14 witnesses but the defence side examined none.

6. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. It appears from the trend of cross-examination of witnesses and the replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure, the defence case was the denial of offence with a plea of innocence.

7. On hearing of both sides, the learned trial court convicted the accused persons by the impugned judgement.

8. Hence the appeal.

9. Being aggrieved by and dissatisfied with the impugned judgement, the present appellants have lodged this appeal mainly on the ground that PW 3 has contradicted evidence of other witnesses regarding the carrying of the injured to the hospital. The learned Judge failed to consider that not a single neighbour was examined in this case besides the relation of the deceased. Further, it was taken that proper examination of the appellant under Section 313 of the Code of Criminal Procedure was not done.

10. Now, the point for consideration is if the impugned judgement suffers from any illegality or impropriety and hence calls for any interference or not.

11. Before going deep into the matter, some very relevant pieces of evidence be first considered. The defacto complainant was the deceased Hiren Mahato. The F.I.R. was lodged by him and it was proved by PW-1, the wife of the deceased. It was stated in the FIR itself by the deceased that the accused persons viz. Haripada Mahato and Kalipada Mahato rushed to his house, hit by iron rod and lathi and fractured his head and as a result of that he lost his sense. P.W.-1, wife of the deceased, stated that on 5th Jaistha, 1993 B.S., the incident took place when she and her husband were supplying straw bundles to the labourer, Sk. Sadar Ali, who was engaged in thatching their house. She further stated that her mother-in-law, P.W.-10 who resides with them, came back home weeping and disclosed that when she was tending goats in the field, the goats entered into the jute field of the accused perso