Joymalya Bagchi, J. - (1.) The appeal is directed against the judgment and order dated 25.06.2013 and 26.06.2013 passed by the learned Additional Sessions Judge, 5th Court, Malda in Sessions Case No. 21 of 2012 (S.T No. 4 of 2012) convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer R.I. for life each and to pay a fine of Rs.5,000/- each, in default, to suffer S.I. for two years more.
(2.) Prosecution case as alleged against the appellants is to the effect that on 29.06.2009 there was a family dispute between the family of one Chittaranjan Singha (P.W. 10) on the one hand and Swadhin Singha (the appellant therein), Prakash Singha and Bikash Singha on the other hand. The said matter was resolved through a village salish. Sisir Singha, P.W. 3 was the son of Chittaranjan and a friend of Tinku Adhikari, the deceased. Tinku supported Sisir in the said dispute. On 14.07.2009 Tinku had gone to the residence of Sisir in connection with his academic pursuits and had stayed for the night. Around 11.45 PM the appellants came to the residence of Sisir Singha and appellant no. 1 assaulted Tinku with a hasua. When Sisir cried out for help the miscreants ran away. Victim was shifted to Bulbulchandi hospital for treatment and thereafter to Malda Sadar hospital where he expired on the next day at about 1/2 AM. Over the incident Sankar Adhikari (P.W. 2), father of the victim, lodged written compliant with the police resulting in registration of Habibpur P.S case no 116/2009 dated 15.07.2009 under Sections 302/34 IPC. In conclusion of investigation charge sheet was filed against the appellants. The case was committed to the court of sessions and transferred to the learned Additional Sessions Judge, 5th court, Malda for trial and disposal. Charge was framed under Sections 302/34 IPC against the appellants. The appellants pleaded not guilty and claimed to be tried. In the course of trial prosecution examined 19 witnesses and exhibited a number of documents to prove its case. The defence of the appellants was one of innocence and false implication. In conclusion of trial the trial judge by the judgment and order dated 25.06.2013 and 26.06.2013 convicted and sentenced the appellants as aforesaid.
(3.) Mr. Kallol Mondal, learned advocate appearing for the appellants submitted that there was enmity between the appellants on the one hand and family of Chittaranjan Singha (P.W. 10) on the other hand. The victim was a friend of Sisir Singha (P.W. 3), son of Chittaranjan and had supported Sisir in the dispute. All the prosecution witnesses are the family members of Chittaranjan and they have falsely implicated the appellants out of grudge. He further submitted that the independent witnesses namely P.W. 5 and P.W. 14 have not supported the prosecution case. He also submitted that the purported oral dying declaration made to P.W. 1 is unreliable as it is not corroborated by other witnesses including P.W. 3 (Sisir Singha). P.W 3, Sisir Singha also did note the presence of appellant nos. 2 and 3 at the spot. Accordingly, the appeal is liable to be allowed.;