Sadhan Kumar Gupta, J. - (1.) This appeal is directed against the judgement and order dated 22.11.99 passed by the learned Additional Sessions Judge, 2nd Court, Birbhum whereby he convicted the appellant No.l under section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and also to pay fine of Rs.2000/- in default to suffer further R.I.for three months and the appellant No.2 was convicted and sentenced under section 325 of the I.P.C, and sentenced to suffer R.I. for three years and also to pay fine of Rs.l,000/- in default to suffer further R.I.for one month.
(2.) The prosecution case, in short, is that on 3.5.90 at about 8.00 a.m. one Sk.Hasib submitted a written complaint in the Mohammad Bazar P. S. stating therein that he is a resident of Alinagar within P. S. Mohammad Bazar. He has stated in his written complaint that on 3.5.90 at about 7.00 a.m. one Sirajul Sk. was assaulting his cousin brother Kasem Sk. on the road on some allegations. Sk. Nasem, the brother of Kasem informed the incident to the house of the complainant. Hearing that the complainant, his uncle Erfan Sk. and his father Khosdil Sk. came to the pitch road and found Sirajul Sk. in front of the house of one Japan Sk. Erfan Sk. asked Sirajul Sk. as to why he assaulted that boy. Over this, altercation started amongst them. At that time Japan Sk., Kamal Sk. alias Arfe, Hiru, Gogal Sk., Arebul Sk., and Rahamat Sk. came in support of Sirajul with lathi, tangi etc. Kamal alias Arfe assaulted Erfan on his head by a tangi and as a result of that Erfan fell down on the road. Thereafter, Japan Sk. assaulted Erfan on his hand by a Ballam. Rahamat assaulted him by stone. Seeing that Jehera Bibi, Sifura Bibi and others including the complainant tried to resist. Then Hiru assaulted Jehera Bibi by lathi and Rahamat Sk. assaulted the complainant on his head by a Bhojali. All the accused persons threw stones and as a result of that Sifura sustained injury. At that time Anwar Sk. and many others came running to the spot and seeing that the accused persons fled away. Erfan Sk. was then taken to the P.S.and from there, he was sent to the hospital. The complainant and others were also treated in the hospital. Over this complainant, Mohammad Bazar P.S. Case No. 32/90 dated 3.5.90 was started against the accused persons. The case was investigated. During investigation Erfan Sk.died in the Suri Hospital. After completion of the investigation charge sheet was submitted against the accused persons Charges were framed against the accused persons under sections 147/302 read with section 149 of the I.P.C. A separate charge under section 323 I.P.C. was framed against Hiru Sk. During trial accused Sirajul Sk. expired. The charges were read over and explained to the accused persons who pleaded not guilty to the charges and claimed to be tried. The defence case, as it transpires from the trend of cross - examination as well as from the statements as made by the accused persons under section 313 Cr.P.C, is that of denial and also that there was a land dispute between Khosdil, Ramjan and the deceased Erfan Sk.and as a result of land dispute Erfan sustained injuries and ultimately he expired. It is the specific defence case that in order to save Khosdil and Ramjan this case has been falsely instituted against the present accused persons shielding the real culprits. They have claimed that no such incident took place on 3.5.90. The learned Additional Sessions Judge considered the entire evidence on record as well as the statements made by the defence and the argument submitted by both the sides and thereafter he was of the opinion that the prosecution has been able to prove the charges against the present petitioner and so he convicted them accordingly and as the charges were not proved against the rest of the accused persons, so the learned Additional Sessions Judge was pleased to acquit them. The fact that is to be considered so far as the present appeal is concerned, is whether the judgement and order of conviction as passed by the learned Sessions Judge is justified or not.
(3.) We have already pointed out the fact of the case which resulted in the submiss ion of the charge sheet against the accused persons. We have also pointed out that in order to substantiate the prosecution case, the prosecution has led evidence. In a criminal case of this nature entire onus lies on the prosecution to prove the charge against the accused persons beyond any reasonable shadow of doubt. We have already pointed out that the prosecution has adduced evidence to prove the charges against the accused persons and as such we are of opinion that before coming to a final decision so far as the present appeal is concerned, we are to look into the evidence that has been adduced by the prosecution so far as the present case is concerned. It appears from the record that the prosecution has examined as many as eight witnesses. The statements of these witnesses are very vital for the purpose of this case and as such we prefer to look into the statements made by those witnesses and to scan the same.;