Joymalya Bagchi, J. - (1.) The appeal is directed against the judgement and order dated 19th January, 1996 passed by the learned Additional Sessions Judge, 2nd Court, Murshidabad in Sessions Trial No. 1(2)94 arising out of Sessions Serial No. 6 of 1990 convicting the appellants for commission of offence punishable under Sections 304 Part II read with Section 34 of the Indian Penal Code and directing them to suffer rigorous imprisonment for ten years each and pay a fine of Rs.5,000/- each, in default to suffer rigorous imprisonment for six months more.
(2.) The prosecution case as alleged against the appellants is to the effect that Ziller Rahaman, P.W. 1 herein, along with his brother Amrul Haque was proceeding to attend the festival at the residence of Ansar situated at Daskhin-Pakurdiar on 17.07.1986 at about 7P.M. When they reached near the residence of Mansur Sk. (P.W. 4), at DakshinPakurdiar, the appellants along with other accused persons viz. Ismile Sk. Rofejuddin, Rajimuddin, Ahasan, Josimuddin, Anesur, Mojibur Rahaman, Jamaluddin, Kamaluddin, Jahangir and Karim Mondal and others assaulted the victim with lathi, hasua and fala etc. Ziller Rahaman managed to flee away and from a distance saw the assault on his brother Amrul by the accused persons. On the cry of Ziller, Jan Mahammad (P.W. 2) and Moslem Sk. (P.W. 8) and others came to this spot and witnessed the incident. Thereafter the accused persons left the spot with the bicycle. Complaint was lodged by Ziller Rahaman with the police resulting in registration with Jalangi Police Station Case No. 11 dated 18.07.1986 under Sections 302/34/379 of the Indian Penal Code against the appellants and other accused persons. In conclusion of investigation, charge-sheet was filed against the appellants and other accused persons and the case was committed to the Court of Sessions and was transferred to the Court of Additional Sessions Judge, 2nd Court, Murshidabad for trial and disposal. Charges were framed under Sections 304/34 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined eighteen witnesses and exhibited a number of documents. The defence of the accused persons was of innocence and false implication. The specific defence of the accused persons is that the incident did not occur in the manner and the course as narrated by the prosecution witnesses. The victim Amrul was a person of bad character and had been murdered by unknown assailants. The appellants have been falsely implicated in the instant case due to long standing land dispute. In conclusion of trial, the trial court by judgement and order dated 19th January, 1996 convicted and sentenced the appellants, as aforesaid. However, the court acquitted the other accused persons from the charges levelled against them.
(3.) Mr. Ganguly, learned senior Counsel with Ms. Biswas, appearing for the appellants submits that presence of P.W. 1 at the place of occurrence is doubtful. P.W. 7, the dafader who had first informed the police about the incident did not find P.W. 1 at the place of occurrence and his evidence is corroborated by P.W. 9, a local witness. Evidence of P.W. 2 and P.W. 12 who claimed to be eye-witnesses did not support the prosecution case against the appellants at all. There is no explanation as to why their evidence is ignored by the learned trial judge in coming to a finding of guilt against the appellants. It is also submitted that other eye-witnesses viz. P.W. 8 and P.W. 11 did not give out the names of the appellants at the earliest opportunity to the police. He accordingly prayed for acquittal of the appellants.;