K.J.Sengupta, J. - (1.) In this appeal the appellants/accused have challenged the judgment and sentence of a convinction passed by the learned Additional Session Judge, 3rd Court, Krishnanagar, Nadia in Sessions Trial No. V of 1988 arising out of Krishnanagar Police Station case No. 5 dated 15th December, 1983 (G.R. Case No. 2678/83). The appellant No. 1 by the judgment and sentence of the learned Trial Judge has been awarded with life sentence under section 302 of the I.P.C. and further to pay a fine of Rs. 2000 and in default to undergo rigorous imprisonment for further period of six months. Sudhir Ghosh being the appellant No. 3, Mallick Ghosh being the appellant No. 2 have been awarded with rigorous imprisonment for three years under section 324 of the I.P.C. The appellant No. 3, viz, Sudhir Ghosh, appellant No. 2, viz., Mallick Ghosh and appellant No. 4, viz., Ajoy Halder were awarded with rigorous imprisonment for one year under section 323 of the I.P.C. Both the said sentences under sections 323 and 324 against appellant Nos. 2, 3 and 4 are to run concurrently. The accused/appellants along with other five persons, viz., one Swapan Chakraborty, one Shambhu Sengupta, one Subal Halder, one Ashok Halder, one Basudev Halder were tried jointly in pursuance of the complaint and/or FIR lodged by one Netai Ghosh, PW-1 herein. The case made out in the said FIR lodged by PW-1 is stated hereinbelow:
(2.) On 15th December, 1983 one Shri Mallick Ghosh, the appellant No. 2 herein being the neighbour of the PW-1 came to his house and started quarrel with his daughter, viz., Sumitra Ghosh being PW-3 herein.While quarreling, the appellant No. 2 herein assaulted PW-3. Such quarrel followed by assault took place because of a goat of PW-1 having strayed into the house of the appellant No. 2 at about 3.00 p.m. on 15th December, 1983. At that point of time neither the PW-1 nor any of his sons was in his house.His son namely Kesto being the victim and Sunil Ghosh, PW-7 on their return to the house at about 6.30 p.m. learnt about the said incident of quarrel and assault to pw-3. Having found Mallick Ghosh being the appellant No.2, the victim called for an explanation from him as to why PW-3 was assaulted. To this, there was an altercation ensued between the said victim and the appellant No.2. Appellant No.1 while alteration was on, assaulted the said victim. Having seen Kesto being assaulted, Sunil Ghosh being PW-7 brought the victim back home and appellant No. 2 also went back to his house. About half an hour on that day around 7 p.m. when the said victim went to the tubewell situate behind the house of the PW-1 the appellant No.2 along with appellant No.1 Shri Sudhir Ghose, Shri Swapan Charkaborty, Shri Sunil Halder, Shri Sambhu Sengupta, Shri Basudeb Halder, Shri Subal Halder, Shri Ashok Halder, and Shri Ajoy Halder came to the said place of tubewell and they came in a group and started altercation with the said victim. They dragged the said victim from the side of the tubewell towards the banana plantation by the side of the house of the PW-1.Thereafter the appellant No. 1 first assaulted Kesto being the victim on his head with an iron rod. Thereafter at the instigation of Shri Swapan Chakraborty, the appellant No. 1 Sunil Halder and Ajoy Halder and all others started assaulting the victim with iron rod, bamboo stick, tangi balidhara and other blunt weapons whatever they were having in their hands at that time. The PW-1 and Shri Gour Ghosh being PW-12 and his son Sunil Ghosh, went to save the victim. But PW-1 and the aforesaid persons were also assaulted and they got injured. Thereafter the aforesaid accused persons dragged the victim. Immediately after the said incident, the people of the locality, having found Kesto being the victim, lying in unconscious state took him to Bhajanghat Hospital. The complinant being PW-1 along with aforesaid persons were also taken to Bhajanghat Hospital also. Thereafter the victim was removed from Bhajanghat Hospital to Krishnaganj Hospital. One Sasthi Ghosh, Anand Bag, one Ashwani and one Iyuddin, one Manoranjan Halder and one Rabi Ghosh of Bhajanghat took Kesto to Krishnaganj Hospital. After removal of Kesto from Bhajanghat Hospital to Krishnaganj Hospital, PW-1 fell sick. Accordingly he was also removed from the said Bhajanghat Hospital to Krishnaganj Hospital and on the way he became unconscious. After regaining his consciousness on the following morning, PW-1 found himself lying in the house of his elder son at Nawghata. Accordingly, there was a delay in lodging the complaint. The said complaint which was treated as part of the FIR is also exihibited being Exhibit No. I. The aforesaid story had been mentioned in the written complaint. In transpire from the evidence and case of the prosecution that on the date of of occurance of the incident at about 9 o'clock one Bikash Biswash being PW-15 informed the local police station to the effect that the appellant No. 1 herein had murder the victim and that information was received by one Biswanath Palit being PW-14. Immediately after the receipt of such information the said PW-14 came to the spot at 10.30 p.m. and started investigation. He prepared a sketch map of the spot and examined PW-3 at the said place. Thereafter he made inquest report of the victim on 17th December, 1993 at about 8.45 a.m. After making inquest report the body of victim was sent to Barrackpore Hospital and there one Dr. Amalendu Das Mahapatra being PW-16, made post mortem of the body of the victim and this is how the story began.
(3.) The learned Trial Judge framed the following charges: On or about 15th December, 1983 you in furtherance of common intention at Bhajanghat within Krishnaganj Police Station did commit murder by intentionally causing death of Krishnapada Ghosh alias Kesto and thereby committed an offence punishable under section 302/34 of the Indian Penal Code and within my cognizance. Secondly : That you on or about the same day at same place in furtherance of common intention voluntarily caused hurt to Netai Ghosh by instrument of cutting and thereby committed an offence punishable under section 324/34 of the I.P.C. read with section 34. Thirdly : That on or about the same day at the same place in furtherance of common intention voluntarily caused to Sunil by instrument of cutting and thereby committed an offence punishable under section 324/34 of the Indian Penal Code and within my cognizance. Fourthly : That you on or about the the same day at the same place in furtherance of common intention voluntarily caused hurt to Gour Ghosh and thereby committed offence punishable under section 323/34 of I.P.C. and within my congnizance.;