SADHAN KUMAR GUPTA, J. - (1.) These two criminal appeals were taken together for hearing, as both these appeals are from a single judgment passed by learned Additional Sessions Judge, 7th Court, Alipore in Sessions trial No. 9 (3) of 1997. By the said judgment, the learned Court below convicted 8 accused persons for the offence under Section 148 of the I.P.C. and they were sentenced to suffer Imprisonment for 2 years and to pay a fine of Rs. 1000/- each. Five other accused persons viz. Abed Ali Laskar, Nazu alias Nazrul Laskar, Azijul Laskar, Sirajul Laskar and Nabir Ali Laskar were convicted under Section 302 read with Section 149 of the I.P.C., and were sentenced to suffer imprisonment lor life and also to pay a fine. As the convicted accused persons were aggrieved by the said judgment and order of conviction passed by the learned Court below, they filed two separate appeals against the said order of conviction. Since both the appeals have arisen from a self-same judgement, both of them were taken up together for consideration.
(2.) The case of the prosecution is that on 15.10.93 at about 10/1O.30 a.m. when the de facto complainant was giving 'PALA' in the pond then the accused persons namely Abed Ali Laskar. Nabir All Laskar (Kachi), Sher Ali Laskar. Mohammad Laskar, Sahadul Laskar, Nazu Laskar, Sirajul Laskar and Aju Laskar came there being armed with lathi, iron rod. etc. They started abusing the de facto complainant Moula Molla in filthy language and asked about the whereabouts of his uncle Mannan Molla. At that time Mannan Molla was returning home from his pond. As soon as the accused persons saw Mannan, they all houted and abused him and expressed their desire to kill him They caught his uncle and immediately thereafter accused Abed All Laskar hit him on his head with an iron rod and as a result of that Mannan Molla fell down. Immediately thereafter, the above named persons started assaulting Mannan with iron rod, lathi, etc. on his head, chest and other parts of the body with the intention to kill him. Hearing the human cry, the daughter of Mannan Molla and other witnesses reached the spot. One accused person assaulted the de facto complainant and Maleka, the daughter of Mannan and as a result of that they both sustained some injuries. Due to the assault the skull of Mannan Molla was fractured and due to his injuries in chest there was bleeding from his mouth and nose. After the occurrence the de facto complainant took Mannan Molla to Mograhat P. S. Seeing the serious condition of Mannan, he was immediately sent to the Mograhat Hospital, wherefrom he was again referred to Diamond Harbour Hospital. As the condition of Mannan was very serious so the Diamond Harbour Hospital referred him to Bangur Hospital where he was admitted in serious condition. As the de facto complainant and others returned to the village in the night, they could not inform the matter in writing to the P. S. and as such on the next date i.e. 16.10.93 at about 9 a.m. the de iactb complainant submitted the written complaint to the Mograhat P. S. In the written complaint, it was also mentioned therein that the accused persons committed the offence at the instigation and order of the local Panchayat Pradhan Muraribabu. On the basis of the written complaint, Mograhat P. S. Case No. 86 dt. 16.10.93 was started against the accused persons. The case was investigated and after completion of the investigation chargesheet was submitted against 11 accused persons including the 8 accused persons who are named in the F.I.R. During trial charges under Sections 148 and 302 read with 149 I.P.C. were framed against the accused persons. Same was read over and explained to the accused persons both who all pleaded not guilty to the charges and claimed to be tried. Prosecution in all has examined 14 witnesses to prove charges against the accused persons. Defence has not adduced any evidence. Defence case, as it has transpired from the trend of cross-examination as well as from the statement as made under Section 313 Criminal Procedure Code, is that of complete denial and that they have been falsely implicated to this case.
(3.) We have already pointed out that the learned Court below held all the appellants guilty for the offence under Section 148 of the I.P.C. and the learned Court below separately held accused Abed All Laskar, Azijul Laskar, Sirajul Laskar. Nabir Ali Laskar and Nazu alias Nazrul guilty for the offence under Section 302 read with Section 149 I.P.C. Let us now see how far the learned Court below was justified in convicting the accused persons as mentioned hereinbefore. It appears from the Lower Court Record that prosecution in all has examined 14 witnesses to prove the charge against the accused persons. Out of those 14 witnesses PW. 1 Moula Molla, PW. 5 Maleka Khatun, PW. 7 Salima Bibi, PW. 11 Kuddus Ali Molla are the eye-witnesses. PW. 2 is Doctor P. B. Das who conducted the P.M. examination. PW. 6 is Palan Fakir. He wrote the F.I.R as per dictation of the PW. 1. PW. 8 is Sahidullah Molla. He reached the P.O. immediately after the incident. PW. 10 is Hannan Molla. He has claimed that he reached the P.O. after the incident. But this witness has also claimed that on the date of incident he met the accused persons near the market when the accused persons informed him that they assaulted Mannan. We. have considered the evidence that is available in the record. Let us now first of all discuss the evidence of the eye-witness so far as the present case is concerned. PW. 1 Moula Molla, is the nephew of the deceased Mannan Molla. According to this witness, on the date of incident, the accused persons namely Abed Ali Lasker, Sher All Laskar, Nazu Laskar. Mohammad Laskar, Nabir Ali Laskar, Sirajul Laskar, Aju Laskar. Sahidul Laskar came to him and enquired about the whereabouts of the deceased Abdul Mannan. He has claimed that at that time they were armed with lathi and iron rod. This witness has also claimed that when those persons went away he decided to follow them. According to him, thereafter he found that his uncle Abdul Mannan was coining with fishing net and at that time accused Abed Ali assaulted him by an iron rod on his head. He has further claimed that Nazu and other accused persons started assaulting Abdul Mannan by lathi and iron rod. This witness has claimed that at that time his sister Maleka who was coming with Mannan went for his rescue and at that time accused Sahidul assaulted her by a lathi and as a result of that she fell down. He has also stated that thereafter accused Mohammad Laskar held her feet and threw her to the adjoining khal. Due to the assault Mannan Molla sustained bleeding injuries and this witness along with Maleka and others brought him to the Mograhat P.S. by a van. From there, they were sent to Mograhat Hospital. He has further claimed that from the said hospital they were referred to Diamond Harbour Hospital and lastly the injured was sent to Bangur Hospital where the patient was admitted. He has claimcd that Mannan died in the said Hospital. According to this witness at first police informed them that no case would be instituted as the Pradhan had given them something in writing. He has also claimed that the Pradhan who is an accused in this case, assured that he would settle the matter amicably. Subsequently on the next day of the incident the PW. 1 lodged the F.I.R. in the P.S.;