GIRISH CHANDRA GUPTA J. - (1.) THIS appeal is directed against a judgment and order dated 11th November 2003 by which the eight accused persons were convicted of an offence punishable under Sections 148/149/302 of the Indian Penal Code by the learned Additional Sessions Judge, Birbhum at Rampurhut and by an order dated 12th November 2003 all the aforesaid convicts were sentenced to rigorous imprisonment for life with a fine of Rs.5000/-, in default of payment to undergo further rigorous imprisonment for one year for the offence punishable under Sections 149/302 of the Indian Penal Code. They were also sentenced to undergo two years rigorous imprisonment under Section 148 IPC. Both the sentences were however directed to run concurrently.
(2.) THE facts and circumstances of the case briefly stated are that on 5th April 1991 at about 4 P.M. Khabir Ali riding his bicycle was returning home. He was waylaid by the accused persons and severely beaten by deadly weapon like hesua. He was rushed to the Murarai hospital. He did not however survive and died at about 10.10 P.M. Mr. Basu, learned Advocate appearing in support of the appeal advanced two submissions: a) he criticised the evidence of the witnesses in order to assess involvement of the accused persons and b) he contended that the offence is not one punishable under Section 302 but could at best be an offence under Section 304 of the Indian Penal Code. In order to examine the submissions of Mr. Basu we shall first deal with the evidence of the eyewitnesses. Pw 3 Jahanara Begam is an eyewitness. She deposed in her examination-inchief, inter alia, as follows:- "I went to bring water from the tube well; that tube well is situated on the western side of road of my father"s house and that road is situated in front of our house. Moijuddin was also coming with two buckets in hand for fetching water. Bunu caught hold of Moijuddin. At that time Khabir Ali was coming by cycle. When Khabir Ali came near our cowshed by the side of a culvert, Babar and Mozammel detained Khabir Ali by catching the handle of the cycle. Abdul went there and slapped Khabir Ali on his cheek.
(3.) THEREAFTER Moijuddin escaped and he stood nearby. THEREAFTER accd. persons vis., Bunu, Dudgha, Danesh, Ahamuddin, Sahamuddin and other accd. Persons who are present in dock today caught hold of Khabir Ali and took him to the courtyard of Bunu. THEREAFTER all the accd. Persons assaulted Khabir Ali on different parts of his body. Khabir Ali shouted and thereafter he was silent. Then Harejunessa, the wife of Khabir Ali came to the courtyard of Bunu and requested the accd. Persons to let her husband go. THEREAFTER, I came to my house." During her cross-examination she deposed, inter alia, as follows:- "I cannot remember whether the wife of Khabir saw the entire incident or not. Blood was oozing from the body of Khabir Ali. Khabir was conscious after sustaining injury. I said to every person that Khabir was conscious after sustaining injury upon his person. I stated to my mother that the wife of Khabir came to save Khabir Ali. After narrating the incidents to my mother I am deposing before this Court regarding the incident. Many persons came to the P.O. I cannot remember whether I saw any "Loot- Pat" at the relevant time. I cannot say as to who removed the body from the P.O. after the incident. There was only one tube well where Khabir was caught hold of.";