Mitter, J. - (1.) The appellants and several others were placed upon their trial upon, inter alia, a charge under section 307 read with section 34 of the Indian Penal Code before a learned Sessions Judge sitting with a jury. After the Public Prosecutor's address to the jury was over, the learned Judge, for reasons which were recorded by an order of the 6th January, 1956, altered the charge from one under sec, 307 read with section 34 to one under section 326 read with section 84. A fresh plea to the charge was taken from the accused, who pleaded not guilty. They were then offered an opportunity for further cross-examination of prosecution witnesses. They declined this offer and desired that the defence address to the jury should follow. This was done and, thereafter, the learned Judge summed up the case. The jury returned an unanimous verdict of guilty against the present appellants under section 326 read with section 34 of the Indian Penal Code.
(2.) The prosecution case, which reveals a cruel attack upon a man called Atahar Rahaman, was as follows :
(3.) On the 13th July, 1955. Atahar Rahaman of village Kumarsanda, P.S. Kandi, was returning home from his jute field with a small load of grass. As he went along the pathway in front of appellant Farid's house, he was questioned and caught hold of by the waist by Farid, while appellant Kalu and Bipad caught hold of him from his right and front sides. A man called Moslem Sekh came from a neighbouring house with a lathi and gave a blow with it on Atahar's leg. He fell down crying. Other persons came from Farid's house, lifted Atahar and took him inside Farid's house. This incident on the pathway was witnessed by Atahar's small son named Badaruddin, aged 11 to 12 years. Consequent upon Badaruddin informing his mother and brother of what he had seen, Atahar's wife and son hurried to Farid's house. In the meantime, the appellant tied Atahar with a piece of rope round his waist to a date-palm post and beat him mercilessly with sabal, atar and lathis. Atahar's wife, Badaruddin and other son Iman Ali were obstructed when they attempted to enter Farid's house. Badaruddin managed to slip in and hide himself in a cowshed, from where he saw his father being assaulted. News soon spread about the incident and a man called Sarat Ghose turned up and tried to intervene. The local Daffadar also turned up. Frustrated in his attempt to prevent any further attack on Atahar, Sarat Ghose returned to his house, took his gun and as he approached Farid's house, he fired a blank shot. This caused the appellants and their associates to disperse. The attack inside the house was seen by Badaruddin from the cowshed. When the police arrived, this boy Badaruddin came out of the cowshed.;