IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Prasenjit Biswas Harka Bahadur Karki -Versus-

The State of West Bengal For the Appellant : Md. Sabir Ahmed, Mr. Abdur Rakib, Mr. Biswajit Sarkar, Mr. Mojahid Mehedi.

For the State : Mr. Bidyut Kumar Ray, Ms. Manashi Roy.

Hearing concluded on : 29.08.2025 Judgment On : 13.11.2025 Prasenjit Biswas, J:-

1. This appeal is directed against the impugned judgment and order of conviction passed by the learned Sessions Judge, Darjeeling, in connection with Sessions Case No. 17/89.

2. By passing the impugned judgment this appellant found guilty for commission of offence punishable under Section 304A of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for two years.

3. Being aggrieved by and dissatisfied with the said impugned judgment and order of conviction, the present appeal is preferred at the instance of the appellant.

4. The case of the prosecution in nutshell is that:

“A complaint was lodged by the defacto complainant stating, inter alia, that on 6th January, 1984 he along with his companions were returning to a Marebong Tea Estate after having their marking at Janbari and as soon as they reached near Changtong Tea Estate they were chased by the group of assailants. The said assailants were throwing stones aiming on them and being so chased a few of this group turned towards the nearby village and the rest started running towards falls area. It is said in the said complaint that the group of assailants consisting of this appellant and other accused persons. It is stated that because of being hit by the stones hurled by the assailants, four persons of the group of the defacto complainant sustained severe injuries and two of them died on the spot. The two injured persons i.e. Maniprasad Rai and Bhai Bahadur Rai the injured persons regained their consciousness and started raising alarm. Hearing such alarm the nearby villagers including the fellowman of the group of companions of the complainant who took shelter in the village arranged for shifting the injured and the dead person to the hospital. Over this complainant a case being Pulbazar P.S. Case No. 2/48 dated 07.01.1984 was started.”

5. After completion of the investigation charge-sheet was submitted by the Investigating Agency. Charge was framed by the Trial Court under Section 304, Part-II of I.P.C.

6. In this case, thirteen (13) witnesses were examined on behalf of the prosecution and documents were marked as exhibits on its behalf. Neither any oral nor any documentary evidence was adduced on behalf of the defence.

7. Mr. Md. Sabir Ahmed, the learned Advocate appearing on behalf of the appellants, has strenuously argued that upon a proper consideration of the facts and circumstances of the case as well as the materials available on record, it becomes evident that the judgment and order of conviction passed by the learned Trial Court are unsustainable in law and, therefore, liable to be set aside.

8. The learned Advocate has submitted that the charges framed against the accused persons were not in accordance with law, and as a result, the appellant suffered serious prejudice in the course of the proceedings before the Trial Court. It is contended that the framing of improper and legally defective charges vitiated the fairness of the trial and deprived the appellant of a proper opportunity to defend him effectively, thereby causing a miscarriage of justice.

9. The learned Advocate has further drawn the attention of this Court to the evidence of P.W.6, Bhai Bahadur Rai, who is one of the injured witnesses in this case. In his cross-examination, P.W.6 clearly stated that because of the darkness that had set in at the time of the incident near the falls, he was unable to recognize the accused persons, including the present appellant. Despite such a categorical statement made by an injured witness, the learned Trial Judge has failed to consider or give due weight to