IMPORTANT POINT
The prosecution must prove guilt beyond reasonable doubt, and inconsistencies in evidence can lead to acquittal.

JUDGMENT :

ANANYA BANDYOPADHYAY, J.

1. This appeal is preferred against judgment and order of conviction dated 30.05.2001 and 31.05.2001 passed by the Learned District and Sessions Judge, Howrah in Sessions Trial Case No. XVI (1)/2001 convicting the appellants under Section 304 (II) of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/-each in default to undergo rigorous imprisonment for two months.

2. The prosecution case precisely stated that on 15.05.1996 at about 5.30 p.m. at Village - Boharia, Police Station - Jagatballavpur, District - Howrah when the three accused persons were ploughing the land allegedly belonging to the deceased, Satish Hazra, trouble ensued. Satish Hazra objected and the accused being infuriated attacked Satish Hazra. Biswanath Santra throttled the neck of the deceased and the other two, Sridhar and Prasanta assaulted him with fists, blows and kicks. Being so assaulted, the deceased fell on the ground and his wife Sankari Hazra and other adjoining people came to the spot and took him to his house and poured water. Subsequently Satish Hazra expired. The incident of his death was reported to the police on the following day at about 11.00 hours by one Prasanta Santra who was the brother-in-law of the deceased.

3. Based on the written complaint as aforesaid, the police recorded the Jagatballavpur U. D. Case No. 29/96 dated 13.05.1996 and held inquest on the dead body. Thereafter, J.B. Pur P.S. Case No. 42/96 dated 13.05.1996 was registered under Sections 302/34 of the India Penal Code against the appellants.

4. On completion of investigation, police submitted charge-sheet against the appellants under Sections 302/34 of the Indian Penal Code. Charges were framed under Sections 302/34 of the Indian Penal Code to which the appellants pleaded not guilty and claimed to be tried.

5. In order to establish its case the prosecutions examined 11 witnesses and exhibited certain documents.

6. The Learned Advocate for the appellants submitted as follows:

(i) PW-4 stated that Sukumar Ghosh informed the police over phone. Sukumar Ghosh was not examined or cited as prosecution witness. General Diary was also not exhibited regarding information given by Subimal Ghosh. There was no explanation of delay of more than 24 hours in filing the complaint.

(ii) No neighbours were examined though PW-3/Sankari Hazra stated that many people of the locality were present. Only the interested persons were examined. Though PW-3 and PW-4 stated 50/60 persons came to the spot, none were examined.

(iii) Civil cases were pending between the accused and the complainant which was disclosed by PW-4. PW-3 disclosed that the accused persons imposed fine concerning an illicit relationship. Enmity between the accused and the victim was emphasized.

(iv) The story that the eyewitnesses were obstructed to inform the police was negated by PW-4 who stated that the accused fled. All of them were living in adjoining houses and had good relations.

(v) Non-examination of the doctor who came to examine the deceased after the incident casts doubt on the entire prosecution story and non-production of telephonic message hit Section 114(g) of the Evidence Act.

(vi) The prosecution evidence and the finding of the Learned Judge being that the accused persons allowed the deceased party to stay over the land out of mercy, deceased Satish Hazra had no right to protest the act of cutting earth by the accused, if believed, and the accused persons had a right of property to use their own property and the deceased party the aggressions and as such the accused were entitled to benefit of doubt.

(vii) There was no mark of violence found on the body of the victim. It was submitted that if the story of the prosecution was taken to be true, for the sake of argument, then there should be marks of violence over the body/resistance of the victim. There was not a drop of blood on the earth. The police had also not seized an