NISHITA MHATRE,J. - (1.) THE judgment and order of the Additional Sessions Judge, Fast Track Court -I, Basirhat, Narth 24 Parganas dated 29th June, 2006 in Sessions Trial No. 11(7) of 2003 from G.R. No. 393 of 2002 has been challenged in the present appeal. The appellant has been convicted for the offence punishable under Section 302 of the IPC and has been sentenced for imprisonment for life and to pay fine of Rs.2000/ -; in default of payment of fine to suffer rigorous imprisonment for two months.
(2.) THE case of the prosecution is that on 20th May, 2002 at about 6 a.m. Saukat Ali Molla, the deceased, was erecting a bamboo post next to his door which was in a dilapidated condition. Kesmat Ali Molla, his brother, the accused in this case, objected to this and tried to restrain Saukat from doing so. As Saukat paid no heed to Kesmat, the latter struck Saukat on his neck just below the left ear with an axe. Saukat thus sustained a cut injury and fell on the verandah. He was removed to the hospital in a rickshaw van by the complainant who is the brother of both the accused as well as the victim, their elder sister Laili Bibi and their niece Fuljaan Khatun. Saukat died immediately thereafter. The complainant lodged the FIR and the investigation commenced. The case was committed to the Sessions Court for trial. The charge -sheet was submitted under Sections 304 and 325 of the IPC. Later after hearing the parties the Sessions Court framed the charge under Sections 302 and 325 of the IPC. The prosecution examined 14 witnesses in order to establish the guilty of the accused. PW 1, the complainant and PW 5 are brothers of the accused and the victim. PW 2 is the scribe of the complaint. PW 3 is the neighbour and a witness to the seizure list. PW 4 is also a neighbour. PW 6 is a villager living close to the complainant. PW 7 is a sister of the complainant. PWs 8 and 9 are nieces of the complainant. PW 10 is the constable who delivered the dead body to the morgue. PW 11 and PW 12 are police officers, the latter being the Investigating Officer. PWs 13 and 14 are the Medical Officers involved in this case.
(3.) ON perusal of the evidence on record we find that the appellant was a vagabond and did not have any source of income. We have also found from the evidence that PW 1 reiterated the contents of his complaint. According to him, the accused struck one blow with an axe on the neck of the deceased, just below the ear. He has deposed that he and other members of the family who were present at the time of the incident tried to assist Saukat. Rahamat Ali, his elder brother, rushed to the spot to rescue the injured by embracing him. However, the accused assaulted him with a lathi, twice. The witness has spoken about the victim being taken to the hospital where he was pronounced dead. In his cross - examination, this witness has indicated that there is a prolonged litigation pending between the accused and the rest of the family. A settlement was arrived at in the village between the members of the family. However according to PW 1, the accused did not abide by the terms of the settlement and instead prevented the deceased from erecting a bamboo post to repair the room allotted to his share.;