- (1.) The present appeal is directed against the judgment dated 17th May, 1985, in Sessions Trial No. 6/85 (Sessions Case No. 24/84) wherein the learned Sessions Judge, Malda convicted both the accused/appellants under Section 302 read with 34 I.P.C. and sentenced them to imprisonment for life each and to pay fine of Rs. 5,000/- each in default to suffer R.I. for 2 years more.
(2.) The informant, Abdur Razzak came to Gajole P.S. on 27.2.83 and lodged the information alleging that he along with his cousin Toffazal Hossain had their bastu under Dag No. 510 measuring 14 decimals. His cousin Toffazal, without the prior consent of the informant entered into an agreement with one Muslim Mian and Ali Asgar for sale of 7 decimals of land out of the aforesaid property and when the informant came to know all about it he asked his cousin to sale the said portion of land to him. At first the said cousin agreed to sale the portion of land to him but later on at the instance of Muslim Mian, he refused to sale such portion of land. Thereafter, the informant raised fencing on the portion of land in his possession. His cousin raised his claim over such portion of land and for this the informant protested to such claim. Then on 27.2.83 at about 11 a.m., the accused/appellant along with others stated to demolish the fencing of the land in possession. Thereafter the informant along with some other protested. When the informant along with some other protested. When the informant and Munsi Basiruddin, the victim with his two sons protested, on the aforesaid occasion, the accused/appellants and others launched assault with lathi and bricks. The victim, Munsi Basiruddin died at the spot being hit by the bricks thrown by accused/appellants Naimuddin and Muslim. It was further alleged in such F.I.R. that two sons of the victim also sustained injuries by the bricks thrown by the other accused persons. Finding Munsi Basiruddin dead the accused persons fled away from the spot and the informant went to the P.S. and lodged the F.I.R.
(3.) On the basis of the aforesaid F.I.R., P.W.13, S.I. Animesh Mazumdar, the then O.C. Gajole P.S. started the case and endorsed the same to P.W.13 K.S. Das who at the relevant point of time was attached to Gajole P.S., for the purpose of investigation. P.W.13 examined the witnesses and recorded their statements, visited the P.O., prepared the sketch map of the same and also seized some articles in connection with the investigation on a seizure list. He tried to apprehend the accused persons, named in the F.I.R., but could not detain those persons as they were not available. He obtained the P.M. report and on completion of the investigation submitted the chargesheet. The learned Sessions Judge on consideration of the papers referred to in Section 173 Cr. P.C. raised charge under Sections 148, 323 read with Sections 149, 148 I.P.C. and also under Section 302 read with Section 149 I.P.C. against all the 8 accused persons, who faced the trial. In the judgment impugned, the learned Session Judge acquitted all the accused perxcept the two appellants from all the charges levelled against them. He also acquitted the present appellants from the charge under Section 149 and under Sections 149/323 I.P.C., but recorded the convictions and sentence as noted above. In doing so, the learned Sessions Judge observed that the medical evidence furnished by, P.W.11 along with the oral testimonies of the eye-witnesses, namely P.W.1, P.Ws.4 to 6 and P.Ws.8 to 10, which got support from the F.I.R., Ext. 1, proved beyond all reasonable doubt that the Munsi Basiruddin had been attacked by the accused/appellants who threw bricks at him which hit him on the vital portions of his body causing his instantaneous death on the spot. He further held that the evidence on record proved beyond all reasonable doubt that the death of the victim was caused at the P.O. on the date and at the time of the incident by the appellants, who threw the bricks aiming the victim, which hit on the vital parts of the body of the victim, who was an old man of 70 years of age and since the injuries showed that the assailants aimed at the vital organs of the body of the victim, he came to a firm conclusion that both the appellants inflicted those injuries with the intention to cause death of the victim. The learned Sessions Judge further held having regard to the entire facts and circumstances of the case that there was a common intention to commit the offence on the part of the accused/appellants and they participated in doing the act in furtherance of that common intention and therefore Section 34 of the I.P.C. would be applicable in the case.;