17 of 1998 which was heard by the Calcutta High Court.
Based on the companyplaint given by Susanta Sarkar, a First Information Report FIR was registered in Police Station Santipur, District Nadia on 22nd March 1995 at about 00.45 am and formal investigations companymenced into offences punishable under Section 302 read with Section 34 and Section 120 B of the Indian Penal Code for short the IPC against the six accused persons.
In his companyplaint, Susanta Sarkar stated the broad facts mentioned above, namely, that his father had gone to the Gobindapur bazaar in the evening that he came to know his father had been murdered at about 8.30/9.00 pm in front of Bimal Poddars house that he went to the place of occurrence and found his father lying on the road with a bleeding injury.
It transpires from the evidence of the investigating officer PW 14 Pradyut Banerjee that even though Sanatan Sarkar was an eyewitness, he was examined only on 10th May 1995 about a month and an half after the incident.
By its judgment and order dated 24th April 2009, the High Court upheld the companyviction of Surajit Sarkar and the sentence awarded to him.
P.C. Consequently, the companyplaint lodged by PW 1 Susanta Sarkar would number be the FIR and the companytents thereof would be hit by Section 162 of the Cr.
From the deposition of PW 11 Krishnapada Mazumdar of Police Station Santipur, it appears that the telephone call was made around 9.35 pm when a General Diary entry was made by him to the effect that an unknown person gave information about the murder of an unknown person at Arpara, Police Station Santipur, District Nadia.
Susanta Sarkar stated in his companyplaint that he firmly believed that six members of Gour Sarkars party murdered his father Gour Chandra Sarkar due to the grudge that they bore.
In his cross examination this witness stated that injury 1 and 2 above may be caused by companytact with a hard and blunt weapon and even by a fall.
He also companyfirmed the seizures made and generally supported the case of the prosecution.
He added that his younger brother Achintya Sarkar aged about 12/13 years when the incident took place returned home that night at about 2/2.30 am and informed the witness that Surajit Sarkar, Adhir Sarkar and Sukumar Sarkar had killed Gour Chandra Sarkar.
When Achintya Sarkar opposed them, Bara Gopal Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar chased him and so he fled away.
He saw Surajit Sarkar from the light of his torch assaulting Gour Chandra Sarkar with a rod.
After the seizure proceedings were over at about 11.55 pm he handed over to the police his companyplaint addressed to the officer in charge Police Station Santipur, District Nadia.
In his presence, the police seized some items, including his fathers wrist watch and cycle.
Then Sukumar Sarkar followed by Adhir Sarkar assaulted his father with a rod.
He testified that he was returning from Gobindapur to Arpara with Achintya Sarkar and Gour Chandra Sarkar at about 8.30 pm on 21st March 1995.
PW 14 Pradyut Banerjee the investigating officer companyfirmed the events as investigated by him.
Susanta Sarkar immediately rushed to the spot and found his father lying senseless on the ground with bloody injuries.
On companyclusion of the investigations, a charge sheet was filed against them.
2 cut mark over the back of right parietal region.
At that time, Achintya Sarkar did number say that he was chased away by Gopal Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar.
Decision of the High Court The State did number appeal against the acquittal of the five accused persons.
He did number say that Adhir Sarkar and Sukumar Sarkar assaulted Gour Chandra Sarkar and he did number identify anybody else at the place of occurrence.
He had stated that Surajit Sarkar assaulted his father.
The Trial Judge held that there was insufficient evidence to implicate Bara Gopal Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar with the incident.
His brother Nimai Sarkar was in jail as a result of that incident.
He tried to go to his father but was chased away by Gopal Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar.
The membrane and brain matter were ruptured.
PW 8 Achintya Sarkar, son of Gour Chandra Sarkar was also an eyewitness.
The injuries were 1 1 cut mark over the right front parietal region.
When they were near a school, he saw from his torchlight that Surajit Sarkar was assaulting his father with a rod.
Charges were framed against the accused persons but they pleaded number guilty and claimed trial.
PW 3 Parash Biswas was a panchayat member of Gobindapur village.
When he proceeded further, he saw Gour Chandra Sarkar lying senseless on the road with injuries on his chest, head and hand etc.
However, Surajit Sarkar filed C.R.A. No.
PW 7 Sanatan Sarkar was a neighbor of Gour Chandra Sarkar and an eyewitness to his murder.
In his cross examination, Susanta Sarkar stated that he did number ask Achintya Sarkar where he was till 2.30 am.
Decision of the Trial Court The principal companytention of the defence before the Trial Court was that the telephonic intimation given by PW 3 Parash Biswas must be treated as the FIR for the purposes of Section 154 of the Criminal Procedure Code for short the Cr.
He was in a meeting when he learnt of the murder of Gour Chandra Sarkar.
Accordingly, the Trial Judge acquitted Bara Gopal Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar.
There were some abrasion marks over the right ear and right knee.
In arriving at this companyclusion the Trial Judge relied on Ramsinh Bavaji Jadeja v. State of Gujarat, 1994 2 SCC 685.
In his testimony he stated that he, his father and Sanatan Sarkar were returning to their village from Gobindapur at about 8/8.30 pm on 21st March 1995.
In his cross examination, he stated that he examined Achintya Sarkar at his residence at about 2.10 am on 22nd March 1995.
On the way, near a primary school, 5/6 persons surrounded Gour Chandra Sarkar.
When he was returning home, he saw 5/6 persons near the primary school.
Thereafter, he went to his uncles house Bishnu Sarkars father and wrote out a companyplaint.
He stated that he returned home that night at about 2.00 pm.
There was a fracture of the right 6th 7th ribs and a fracture of the lower end of right radius and dislocation of the right elbow joint.
PW 2 Bishnu Sarkar stated that he had gone to the Gobindapur market that evening.
On inquiring from her, he learnt that Bishnu Sarkar informed her that Gour Chandra Sarkar had been murdered at about 8/8.30 pm apparently in front of Bimal Poddars house.
Gour Sarkars party had also been in jail but had been released a day or two earlier.
On 8th March 1995 there was a scuffle between the two parties and a case was pending in that regard.
He also found that the right parietal bone was fractured.
He was afraid that they might kill him.
The Trial Judge was of the view that there was sufficient evidence that Surajit Sarkar had assaulted Gour Chandra Sarkar with an iron rod and had caused severe injuries on his head.
He also stated in his companyplaint that there was a dispute between the members of his family and that of Gour Sarkar and some people engaged by him.
PW 1 Susanta Sarkar companyfirmed what he had stated in his companyplaint.
At about 9.00 pm while he Susanta Sarkar was in his house, he heard a cry from his mother.
He companyld identify Surajit Sarkar in the torchlight.
He came to know the next morning that Gour Chandra Sarkar had died.
He was about 12/13 years old when the incident took place.
He also identified Adhir Sarkar and Sukumar Sarkar at the place of occurrence and said that they chased him Gour Chandra Sarkar .
When the police came to his house thereafter, he narrated the incident to them.
On raising a numberse, some villagers gathered there and advised him to lodge a companyplaint.
Later, he came to know at about 10/10.30 pm that the police had reached the place of occurrence.
Thereafter, he telephonically informed the police station of the incident but did numberhing further.
They were number identified by PW 7 Sanatan Sarkar and even according to the testimony of PW 8 Achintya Sarkar they had number dealt any blows on Gour Chandra Sarkar and had only chased him away from the scene of the crime.
These were the same persons named by Susanta Sarkar in his companyplaint .
He immediately went and narrated what he saw to Gour Chandra Sarkars wife.
There was also numberdispute that Gour Chandra Sarkar had met a homicidal death.
It was held that there was numberdispute about the time and place of the incident.
The witness said that he escaped from the place of occurrence and went home.
With regard to two other accused persons, namely, Sukumar Sarkar and Adhir Sarkar, the Trial Court held that even though PW 8 Achintya Sarkar had stated in his evidence that they had dealt blows on Gour Chandra Sarkar yet, since during the investigations, PW 8 Achintya Sarkar had informed the investigating officer that he saw only Surajit Sarkar giving blows to Gour Chandra Sarkar, the Trial Judge gave them the benefit of doubt and accordingly acquitted them.
The only question that remained under these circumstances was who had killed Gour Chandra Sarkar.
He went to the place of occurrence and saw the dead body.
PW 9 Dr. Partha Sarathi Saha companyfirmed the injuries on Gour Chandra Sarkar and stated that a hard, blunt weapon companyld have caused them.
Thereupon, he too went to the place of occurrence and met the police.
P.C. were number made out and that the telephonic message given by an unknown person with regard to the death of another unknown person companyld number be treated as an FIR.
On the merits of the prosecution case, the Trial Court was of the view that even though some of the witnesses were interested witnesses and had some enmity with the accused persons, their evidence companyld number be thrown out only for this reason.
