- (1.) Special leave petition by petitioner Nos. 1 and 2 rejected.
(2.) Special leave to appeal by petitioners Nos. 3, 4 and 5 (original accused Nos. 3, 4 and 5) granted.
(3.) Having granted special leave to petitioners Nos. 3, 4 and 5 we heard Mr. G.S. Chatterjee, learned counsel for the appellant, Mr. M.K. Khsatria, learned counsel for the State of West Bengal and Mr. D.P. Mukherjee, learned counsel for the heirs of the deceased Sheikh Sayed All. All the five accused were convicted by the learned Sessions Judge for an offence under section 304 Part lI read with section 34 of I.P.C. In the appeal preferred by all the convicts the High Court affirmed the conviction of original Accused Nos. 1 and 2 and sentence awarded to each of them. The High Court modified the order of conviction in respect of original Accused Nos. 3, 4 and 5 and convicted each of them for an offence under section 325 read with section 34 I.P.C. This conclusion was recorded on reaching a finding that these three accused can be said to share common intention to cause grievous hurt but not culpable homicide not amounting to murder. Having regard to all the facts of this case and having regard to the fact that the principal accused persons, original accused Nos. I and 2, have been convicted for an offence under section 304 Part 11 read with section 34, I.P.C., we are satisfied that the conviction of the present appellants (original accused Nos. 3, 4 and 5) must be further modified to one under section 323 I.P.C. because they are alleged to have been armed with branches of neem tree which cannot be described as a dangerous weapon of offence.;