Rajarshi Bharadwaj, J. - (1.) The instant appeal has been preferred challenging the judgement and order dated 10th September, 2012 passed by the learned Additional District and Sessions Judge, Special Court, Dakshin Dinajpur at Balurghat thereby convicting the appellants in connection with Session case no. 44 of 2002 and Session Trial Case no. 27 of 2002 for the offence punishable under Section 304/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/-; in default to suffer further imprisonment for one year.
(2.) The prosecution case in brief is that on 4th January, 1990 there was a trouble over catching of fish by the husband of one Pamiran Bibi and her son from the Ejmali tank over which there was dispute between Pamiran Bibi and Amiruddin's brother and sister. A Salish was called to resolve the dispute between the brothers, co-sharers over the issue of catching fish from Ejmali tank. The Salish was called by Jamal Mia. When the Salish was going on, there was a hot altercation and at that time accused Ramjan Ali gave a blow of hansua on the head of Ayub Ali. Ayub Ali raised his right fore arm to save his head, the blow of hasua fell on his right arm causing cut injury. Simultaneously, one Ismail gave a blow of lathi on the head of Osman Ali. Osman Ali fell on the ground when the assailants fled away. Injured Osman Ali and Ayub Ali were brought to hospital. Osman Ali was shifted to Balurghat Hospital on the following day. First Information Report was lodged by one Answer Ali Sarkar on 6th January, 1990. On the basis of the written complaint, a criminal case, being Gangarampur P.S. Case no. 7/90 dated 6th January, 1990 was initiated against the accused. Investigation was started and after completion of investigation, charge sheet was submitted under Sections 147/148/149/326/324/304 of the Indian Penal Code against the accused persons. The case was transferred to the learned Additional District & Sessions Judge, Special Court, Balurghat, Dakshin Dinajpur and finally transferred to the learned Additional District & Sessions Judge, Special Court, Dakshin Dinajpur. The learned Trial Court framed charges on 3rd May, 2002 against the appellants under Sections 302/325/34 of the Indian Penal Code to which the appellants pleaded not guilty and claimed to be tried.
(3.) Learned advocate appearing for the appellants argued that there was no material of Section 304/34 of the Indian Penal Code against the appellant no.3 Saidur Rahaman, who admittedly was present at the spot when a settlement was going on at the place of occurrence regarding the dispute between the appellants and their relations, but no over act was on his part. Moreover, he did not touch Osman (deceased) or Ayub Ali or facilitated the other appellants to assault him. Mere presence on the spot or carrying a hansua does not prove a crime under the Indian Penal Code. He further argued that the injured eyewitness being P.W.4 and other eyewitnesses stated that the appellant no.2 Ramjan tried to hit on the head of P.W.4 but he raised his forearm and the blow of hansua fell on his right forearm causing a deep cut injury and for such offence Section 324 of the Indian Penal Code can be attracted but not 304/34 of the Indian Penal Code. He also did not touch Osman (deceased) or facilitated the other appellants to assault him. He also submitted that the incident was happened suddenly and on instigation of one Guru Mia, the appellant no.1 Ismail Sarkar assaulted the deceased Osman with a wooden stick. It was not the case of pre-planned murder. Moreover, the appellants were initially acquitted by judgement dated 20th May, 2003 and after seven years the order of retrial was passed by this Hon'ble Court and finally they were convicted in the year 2012. He further submitted that in order to attract Section 34 of the Indian Penal Code there must be a common intention on the part of several persons to commit a particular crime and the crime is committed by them in furtherance of that common intention. In the instant case, there was a sudden fight for which both the parties were injured. Both the parties were sitting for a settlement about the dispute regarding a pond but there was a hot altercation during such settlement meeting and as a result of which both the parties assaulted each other which clearly shows that there was no prearranged plan on the part of the appellants to assault the deceased and P.W.4. In support of his submission, he relied on a decision of the Apex Court in the case of Balu @ Bala Subramaniam & Anr. vs State (U.T. of Pondicherry) (Appeal no. 502 of 2007) where the Hon'ble Supreme Court clearly stated in paragraph 10 that "To invoke Section 34 of IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that (i) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention.";