GIRISH CHANDRA GUPTA, J. - (1.) THIS appeal is directed against a judgment and orders dated 3rd July, 1996 and 4th July, 1996 passed by the learned Additional Sessions Judge, 1st Court, Murshidabad in Sessions Trial Case No. 5 of June 1995 arising out of Sessions Serial Case No. 161 of 1991 convicting the accused Sufal, Buddha and Fatik of the offence punishable under section 304 Part-1 read with Section 34 of the Indian Penal Code and punishing them differently. In so far as the accused Sufal is concerned, he was sentenced to rigorous imprisonment for 10 years as also to pay fine of Rs. 5,000/-; in default of payment to suffer further simple imprisonment for a period of six months. The convicts Buddha and Fatik were sentenced to rigorous imprisonment for 5 years each as also to pay fine of Rs. 3,000/- each; in default of payment to undergo further simple imprisonment for three months each.
(2.) THE facts and circumstances of the case appearing from analysis of the evidence are as follows :- On June 30, 1989 at about 10 a.m. in the morning there was a fight between the parties of the complainant and the accused persons during which some of the accused persons, it is alleged, were assaulted. The accused persons appear to have retaliated at 12 noon in a group consisting of 10 persons. Mritunjoy Gope was caught and chased to the courtyard in front of the house of Fatik Ghosh, where he was severely assaulted. The victim Mritunjoy was taken to the local police station where he made a statement. Before that a written complaint made by Smt. Mritika Gope, wife of Mritunjoy was also recorded. In his statement Mritunjoy stated that he was attacked by 10 accused persons. Fatik, according to him, struck upon his head by a lathi; Buddhadeb Ghosh, according to him, assaulted with a hesua on his back and the accused Sufal hit him with a "Dokanta" on his abdomen. Rest of the accused persons had also taken part in the assault. It is on this basis that all the 10 persons named in the written complaint were charge sheeted for the offence punishable under section 304 Part-l read with section 34 of the Indian Penal Code. The victim, Mritunjoy was shifted initially to the local public health centre and thereafter he was shifted to Behrampore Sadar Hospital. A-surgical operation was conducted by the PW-9 Dr. Siddhanta. During such operation, two blades were recovered from the abdomen of Mritunjoy. Mritunjoy died on 2nd July 1989 at 11.45 p.m. in the aforesaid hospital. Overt acts of the three convicts appearing from the statement of the victim himself have been corroborated by the evidence of PW-1, Mritika Gope, PW-2 Tanmoy, son of the deceased Mritunjoy, PW-3 Bhagyabati Ghosh, sister of deceased Mritunjoy and PW-4 Hriday, a brother of the deceased.
(3.) PW -5 Krishnadhan Ghosh, a neighbour of the deceased deposed that immediately after the incident he reached the place of occurrence and upon enquiry from the victim, he came to know about overt acts of the aforesaid three accused persons.;