Judgment :-

Dalveer Bhandari, J.

1. This appeal is directed against the judgment of the Calcutta High Court dated 15.3.2002, by which the conviction of the appellants Naimuddin and Muslim Mian was confirmed by the High Court under section 302 read with section 34 of the Indian Penal Code (for short `IPC).

2. Eight accused were tried by the Sessions Court under sections 148, 323/149 and 302/149 IPC. The learned Sessions Judge acquitted all the other accused except the appellants Naimuddin and Muslim Mian. Both of them were convicted under section 302 read with section 34 IPC and sentenced to life imprisonment and to pay fine of Rs.5,000/- each and in default to further suffer rigorous imprisonment for two years.

3. It may be pertinent to mention here that Muslim Mian died during the pendency of the appeal and the appeal against him stands abated. In this appeal, we are, therefore, concerned with the appellant Naimuddin only.

4. Brief facts which are necessary to dispose of the appeal are recapitulated as under:

5. The informant P.W.1, Abdul Razzak came to Gajole Police Station on 27.2.1983 and lodged a First Information Report (for short, the F.I.R.) alleging that he along with his cousin Toffazal Hossain had bastu under Dag No. 510 measuring 14 decimals. His cousin, Toffazal, without the prior consent of the informant entered into an agreement with one Muslim Mian and Ali Asgar for sale of 7 decimals of land out of the aforesaid property and when the informant came to know all about it, he asked his cousin to sell the said portion of land to him. At first, his cousin agreed to sell the portion of land to him but later on, at the instance of Muslim Mian, he refused to sell that portion of land to him. Thereafter, the informant Abdul Razzak raised fencing on the portion of land which was in his possession, His cousin raised his claim over such portion of land and for this the informant protested to such claim.

6. On 27.2.1983, at about 11.00 a.m., the accused along with others started demolishing the fencing of the land in possession of the informant, to which the informant along with some others protested. It was protested by the victim Munshi Basiruddin and his two sons. The victim, Munshi Basiruddin died on the spot being hit by the bricks thrown by the accused-appellants Naimuddin and Muslim Mian. It was also incorporated in the FIR that two sons of the victim also sustained injuries by the bricks thrown by the other accused persons. The accused fled away from the spot and the informant P.W.1 Abdul Razzak went to the police station and lodged the FIR.

7. On the basis of the FIR, Sub Inspector Animesh Mazumdar P.W.13 started investigating the case and endorsed the same to K. S. Das, P.W.14, who at the relevant time was attached to Gajole Police Station for the purpose of investigation. P.W.14 examined the witnesses and recorded their statements. He tried to apprehend the accused persons, named in the FIR. P.W.14 obtained the post-mortem report and on completion of the investigation submitted a charge-sheet.

8. The learned Sessions Judge charged eight accused persons under sections 148, 323 read with 149 and 302 read with 149 IPC. The learned Sessions Judge acquitted all other accused of all charges, but convicted the appellants Naimuddin and Muslim Mian under section 302 read with 34 IPC on a specific finding that both these accused participated in the commission of the offence, namely, in launching assault on the victim by bricks which caused the instantaneous death of the victim on the spot. The High Court upheld the conviction and sentence of the appellants.

9. The respondent-State in order to establish the prosecution case examined 14 witnesses. As far as the appellant is concerned, the allegation against him is of killing the deceased by throwing bricks on him. Dr. J. Mandal, P.W.11, who conducted the post-mortem on the dead body of Munshi Basiruddin aged about 78 years and found the following injuries:

"1. One large haem