Joymalya Bagchi, J. - (1.) The Appeals are directed against the judgement and order dated 28.11.1991 passed by Judge, Special Court-cum-Additional Sessions Judge, Cooch Behar in Sessions Case Nos. 68 of 1988 & 68(A) of 1988 convicting the appellant Tamal Paul for commission of offence punishable under Section 304 Part I/34 & 325 of Indian Penal Code and appellant Arun Paul for the offence punishable under section 304 Part I/34 I.P.C. and directing that they shall be released on probation of good behaviour under sections 26(1)(c) of W.B. Children Act, 1959 on execution of bond of Rs.5,000/- each for good behaviour and proper training for the period of three years as the said appellants were juvenile and convicting appellants Tarani Mohan Paul and Tapan Paul for the commission of offence punishable under section 304 Part I/34 of Indian Penal Code of Criminal Procedure Code and sentence them to suffer rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for a further period of one year.
(2.) The prosecution case, as alleged, against the appellants is to the effect that Abani Mohon Paul, P.W. 11 and Tarani Paul are two full brothers. Deceased Dilip Paul was the son of Abani Mohan Paul and deceased Paritosh Paul was his son-in-law. The other appellants namely Tamal Paul and Arun Paul, who were juvenile at the time of commission of offence were sons of Tarani Paul. There was a dispute between Tarani Paul regarding the possession of cultivable land. It is alleged that on 24.12.1986 as Abani Mohan Paul and others had sought to breakdown a new ail constructed by appellants, the latter assaulted Abani Mohan Paul, Dilip Paul and Paritosh Paul with dao, lathi spear and khapar etc and they suffered various injuries on their persons. As a result they were admitted at M.J.N. Hospital Cooch behar where Dilip Paul and Paritosh Paul succumbed to their injuries on 27.12.1986 Abani Mohan Paul was under medical treatment in the hospital for about 12 days. Over the incident, a written complaint was lodged in Mathabanga P.S. Case No. 11/171/86 dated 24.12.1986 under sections 447/341/324/325/326 of Indian Penal Code against the appellants upon the death of the aforesaid Dilip and Paritosh, Section 302 of the Indian Penal Code was also added. In conclusion of investigation, charge-sheet was filed against the appellants and the case was committed to the court of sessions. As appellants Tamal and Arun were found juvenile the case was segregated from the other accused persons and tried one after another by the trial court being S.C. 68A of 1988 & 68 of 1988 respectively. Charges were framed against the appellants under sections 447/302/34/326 of Indian Penal Code. The prosecution examined nineteen witnesses in support of its case and exhibited a number of documents. The appellants pleaded their right to private defence and stated that Tarani was the owner of plot no 899 and Abani & Others had constructed a new ail on the said land. Tarani Paul and Tapan Paul resisted. Under such circumstances, Paritosh Paul tried to assault Tarani with a spade but Tapan Paul obstructed the blow by his hand. Tarani was saved but Tapan was injured. Thereafter, Abani Mohan Paul, Paritosh Paul and Dilip Paul began to assault Tarani Paul with lathi. The accused persons tried to save themselves. There was a scuffling and assaulting between themselves. Both parties were injured. The accused persons were also treated at Mathabanga hospital.
(3.) In conclusion of trial, the trial court while accepting that the appellants had exercised their right to private defence, held that they had exceeding such right and had caused the murder of Dilip Paul and Paritosh Paul, as aforesaid. Upon such finding the trial court convicted and sentenced the appellants as aforesaid. The appellants were, however, acquitted of the charge under section 447, of the Indian Penal Code.;