- (1.) THIS appeal is directed against a judgment dated 29th may, 1992, passed by the learned Additional District and Sessions Judge, raiganj, Uttar Dinajpur, in Sessions Trial No. 4 of 1992 arising out of sessions Case No. 65 of 1990 convicting the accused Abul Hossain, akimuddin, Abdur Rahaman Mia, Soleman Mia and Samsuddin @ Kalu under Sections 147, 324 read with Section 149, 325 read with Section 149 and under Section 304 Part II read with Section 149 of the Indian Penal code. By an order dated 30th May, 1992, the learned Trial Judge sentenced each of the aforesaid convicts to rigorous imprisonment for eight years for the offence punishable under Section 304 Part II of the Indian Penal Code; rigorous imprisonment for two years for the offence punishable under Section 147; rigorous imprisonment for three years for the offence punishable under section 324 read with Section 149 of the Indian Penal Code; rigorous imprisonment for three years and to pay fine of Rs. 500/- each, in default to suffer R. I. for six months each for the offence punishable under Section 325 read with Section 149 of the Indian Penal Code. All the sentences were, however, directed to run concurrently.
(2.) THE facts and circumstances of the case briefly stated are as follows : On 15th March, 1988, at about 8. 30 A. M. in the morning Nasiruddin sarkar, accompanied by his son Ohedul Haque, P. W. 4, went to the field for the purpose of irrigating. All on a sudden the aforesaid convicts broke in the field of Nasiruddin Sarkar and mercilessly assaulted him with lathis. He was also shot at from a bow. Both the victim and his son Ohedul Haque, p. W. 4, raised alarm. The P. W. 5, Abul Hossain, P. W. 6, Dost Md. , P. W. 7, hasan All, P. W. 8, Niamat Ali, attracted by the hue and cry reached the place of occurrence. They found the victim, Nasiruddin Sarkar, lying on the ground. He was removed to his dwelling house. The victim himself disclosed the names of his assailants which has been deposed to by the P. W. 5 Abul hossain, P. W. 7 Hasan Ali, and P. W. 8 Niamat Ali. The P. W. 4 Ohedul haque, an eye witness, has also disclosed the names of the assailants. The victim from his dwelling house was removed to Harirampur Primary health Centre. The P. W. 14 Dr. A. B. Sarkar, who at the relevant time was attached to the aforesaid Primary Health Centre, deposed that he found multiple injuries on the body of the victim. For better treatment the patient was shifted to Malda District Hospital. Dr. A. B. Sarkar (P. W. 14) also issued a certificate which has been marked Exhibit 7. At the Malda District Hospital the victim Nasiruddin Sarkar was admitted under the care of Dr. Dipak sanyal Talapatra the P. W. 1. The bed-head ticket of the Hospital has been tendered and marked Exhibit 1. On 15th March, 1988, in the afternoon the p. W. 4 Ohedul Haque, lodged a Geneal Diary with the P. W. 13 Narayan kumar Majumder, Inspector-in-Charge of Harirampur. The said General diary bearing No. 296 dated 15th March, 1988, was produced through the court Witness No. 1 and has been marked Exhibit "a". On 16th March, 1988, a written complaint was lodged by the P. W. 4, Ohedul Haque , which has been marked Exhibit (3 ). The written complaint was received by the p. W. 10 N. K. Santra. The records reveal that on 15th March, 1988, a blood and mud stained Lungi, a blood-stained Chaddar and two pieces of blood-stained arrows were seized by the police vide Seizure List marked Exhibit 5. On 16th March, 1988, a bundle of trampled paddy plants were seized from the place of occurrence. On 18th March, 1988, at 5. 50 P. M. the victim nasiruddin Sarkar died. Inquest was held by the P. W. 11 S. Ali Mondal on 18th March 1988 itself. The body was thereafter escorted to the morgue by the P. W. 2 Ananda Gopal Dutta and the post-mortem examination was conducted by the P. W. 15 Dr. B. K. Sanyal. Upon examination, the injuries found by him coupled with his opinion, as regards the cause of death appearing from his evidence, read as follows : "i found the following external injuries on the body : 1) One abbression 2" x 1" on the right forearm medial side with laceration of " x " ; 2) One lacerated injury " x " over right wrist; 3) Abbression over centre of the back dimension " x " ; 4) One sharp cut injury " x " over medial side of right leg. It was found two inch below the right knee ; 5) Compound fracture 3" below right knee with dimension of " x "; 6) One abbression " x " inch over left knee. On desection I found peritoriam was covered with fluid. In stomach i found blackish fluid amounting about one ounce. The lever was found pale and enlarged and so also the kidney. No other abnormality was detected. Death according to my opinion was due to the above noted injuries which were ante mortem and homicidal in nature. "
(3.) MR. De, learned senior Advocate, appearing in support of the appeal, has advanced the following submissions : (a) The name of the accused, Akimuddin , was not disclosed by the p. W. 6 Dost Md. , P. W. 7 Hasan Ali, and P. W. 8 Niamat Ali. He, therefore, submitted that the accused Akimuddin should be given the benefit of doubt. (b) Relying on a judgment of the Apex Court in the case of Md. Isak md. and others v. State of Maharashtra reported in A. I. R. 1979 sc 1434, he prayed that sentence should be reduced to five years from eight years as awarded by the learned Trial Judge. ;