DIPAK SAHA RAY,J. - (1.) A common Judgment and order of conviction and sentence have been assailed in two criminal appeals. For the sake of convenience of discussion and arriving at a just decision, both the appeals viz. CRA No.12 of
(2.) THE aforesaid two appeals are directed against the Judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, (Special Court) Jalpaiguri, in Sessions Trial No. 22 of 2003, arising out of Sessions Case No. 175 of 2002 under Section 304/34 of the Indian Penal Code. The said case was started on the basis of a written complaint filed by one Sorojen Ray, on 05.09.2001 before the Inspector-in-Charge, Kotwali Police Station, Jalpaiguri Sadar. The de-facto complainant in his written complaint has alleged that on 04.09.2001 at about 12.30 a.m. at midnight four persons came at a tank known as Grampranchayit Pukur and started stealing fish from the said tank. At that time Subodh Roy and Ratiswar Roy who were guarding the said tank, resisted the said four persons. As a result, the said four miscreants attacked both the guards and assaulted them with sticks. As a result, Subodh Roy became senseless at the spot Ratiswar Roy raised hue and cry and somehow or other managed to escape therefrom. On hearing the said hue and cry villagers came at the spot and managed to apprehend the said four miscreants. Subsequently, when Subodh Roy was taken to Jalpaiguri Sadar Hospital, the doctor declared him as "brought dead". It is further alleged in the said written complaint that on interrogation the said miscreants disclosed their names as Prabir Chandra Dey, Ramesh singh, Gurudas Roy and Nitya Roy. Two fishing nets, one dagger and cycles were recovered from the possession of the said miscreants. On the basis of the said written complaint, Kotwali Police Station Case No. 289 of 2001 dated 05.09.2001 under Section 304/34 of the Indian Penal Code was started. Police investigated the case and after completion of investigation submitted charge sheet against four accused persons namely Prabir Chandra Dey, Ramesh singh, Gurudas Roy and Nitya Roy under Section 304/34 of the Indian Penal Code. On the basis of the aforesaid allegations and other relevant materials, the aforesaid four accused persons were tried for the offences punishable under Section 304/34 of the Indian Penal Code. All the accused persons, however, pleaded not guilty and claimed to be tried when the said charges were read over and explained to them.
(3.) AS against this, the defence case, as it appears from the trend on cross- examinations and the statements made during examination of the accused persons under Section 313 of the Code of Criminal procedure, was the denial of the prosecution allegations and plea of innocence. The prosecution, in order to discharge the burden of establishing the guilt of the accused persons, examined 16 witnesses.;