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

The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 103 of 2002 Suranjan Das & Anr.

-Vs-

The State of West Bengal For the Appellants : Mr. Avishek Sinha (Amicus Curiae)

For the State : Mr. Saryati Datta Heard on : 11.12.2023, 08.02.2024, 05.04.2024, 14.05.2024, 17.09.2024 Judgment on : 23.04.2025 Ananya Bandyopadhyay, J.:-

1. This appeal is preferred against a judgment dated 22.02.2002 passed by the Learned Additional Sessions Judge, 2nd Court, Dakshin Dinajpur at Balurghat in Sessions Trial No.19/2001 arising out of Sessions Case No.61/2001 convicting the appellants under Section 304 (Part-II) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 6 years each and to pay a fine of Rs.2000/- each in default to suffer further rigorous imprisonment of 3 months each. The Learned Judge was however pleased to acquit two other accused persons of the charge under Section 304 (Part-II) of the Indian Penal Code.

2. The prosecution case precisely stated on 28.03.1994 PW-1, the informant invited her brother and father to her house on the occasion of Holi, who came to her house around 01:30 p.m. At that time the appellants and two other accused persons namely Raju Das and Sanatan Das were inebriated and entered into a brown with one Bipul Sarkar, the brother of the informant regarding past issues and started assaulting him. When her son i.e., the deceased went to save his maternal uncle, the appellant no.1 took a wooden stick from the hand of the appellant no.2 and allegedly struck on the head of the deceased as a result of which he fell down on the ground. Thereafter he was taken to Hili Hospital, whereafrom transmitted to Balurghat Hospital where he died in the evening on 28.03.1994.

3. On the basis of the aforesaid complaint, the Police initiated Hili P.S. Case No.57/94 dated 28.03.1994 under Sections 341/448/325 of the Indian Penal Code.

4. After completion of investigation, the Police submitted charge- sheet against the appellants and two others under Sections 341/448/323/304 of the Indian Penal Code.

5. Charge was framed under Sections 304/34 of the Indian Penal Code against the appellant and two other persons, who pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution examined as many as 10 witnesses and exhibited certain documents.

7. Learned Amicus Curiae representing the appellant submitted as follows:–

i. The judgment of the Learned Judge was not a proper judgment in the eye of law, inasmuch as the Learned Judge failed to consider various infirmities in the prosecution evidence which falsify the prosecution case and that had vitiated his judgment.

ii. The Judgment of the Learned Judge was based on conjectures and surmises, not warranted by the evidence on record.

iii. The Judgment of the Learned Judge had been vitiated by reasons of non-consideration of materials which were elicited in the cross-

examination of the prosecution witnesses.

iv. The ingredients of the offence charged not having been established, the conviction of the appellants was not at all sustainable in law.

v. It had escaped the notice of the Learned Judge that the story as alleged by the informant in the F.I.R., was in complete variance to what she deposed in her evidence during trial, inasmuch as in the F.I.R., it was alleged that over some past dispute, Bipul Sarkar and the deceased were beaten by the appellants, whereas the said story as alleged did not find place in the evidence of PW- 1 where a different story was introduced during trial that on 28.03.94 at about 01:00/01:30 p.m., an altercation took place between PW-1 and her father, PW-4 and on hearing such hue and cry the accused persons came there and suddenly the appellant no.1 struck the deceased with a Bamboo which was given to him by the appellant no.2. It was further deposed that she rushed to the spot and her brother told her that the accused persons assaulted her son i