IMPORTANT POINT
Mere participation in the scuffle, without any overt act, does not attract section 302 IPC.

JUDGMENT

Uday Umesh Lalit, J.

This appeal is directed against the Judgment and Order dated 06.06.2006 passed by Calcutta High Court in Criminal Appeal No.255/2000.

2. Six persons namely Tarit Kundu, Bishu Sarkar, Sahadeb Sarkar, Sasthi Sarkar, Paresh Sarkar and Sukumar Ghosh were tried in Sessions trial No.18 of 1998 arising out of Raiganj Police Station case No.117 of 1995 for having committed the murder of one Raju Bose on 27.03.1995. All the accused were found guilty by the trial court vide its judgment and order dated 05.08.2000 and sentenced to undergo life imprisonment for the offences under Section 302 read with Section 34 IPC. In Criminal Appeal No.255 of 2000, the High Court acquitted accused Nos.5 and 6 namely Paresh Sarkar and Sukumar Ghose but affirmed the conviction and sentence with respect to other four accused. Special Leave Petition (Criminal) No.5755 of 2006 preferred by accused No.1 Tarit kundu was dismissed by this Court on 01.12.2006. This appeal by other three convicted accused challenges their conviction and sentence as affirmed by the High Court.

3. The prosecution principally relies on the testimony of PW 2 Nepal Dey, PW 3 Gopal Dey and PW 5 Kanai Sharma. According to PW2 Nepal Dey,

"The occurrence took place on the western side of the National Highway-34. I heard a hue and cry coming from the side of NH 34 when I was fixing up a fencing in my house. As soon as I heard the hue and cry I gave a glance to the place wherefrom there was raising of hue and cry. I saw accd. Tarit Kundu, Sahadeb Sarkar, Sasthi Sarkar, Bishu Sarkar, Sukumar Ghosh and Paresh Sarkar, in all six persons caught hold the collar of shirt of Raju Bose and assaulting him by fist and blows.

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Accd. Sukumar Ghosh and Paresh Sarkar gave the order to kill Raju Bose. Then accd. Sasthi Sarkar, Bishu Sarkar, Sahadeb Sarkar had remained engaged in catching hold of Raju Bose. Accd. Tarit Kundu gave a blow on the back of Raju Bose with the help of a sharp-cutting weapon like `bhojali'."

4. The testimony of PW3 Gopal Dey was to the following effect:-

"I was washing my hands and legs by the water of tube well within my house at the relevant point of time. I heard hue and cry coming from the road side. I gave a glance towards the road side and I saw that a dispute was going on over there. I know the persons who were involved in this dispute. Accd. Sasthi Sarkar, Tarit Kundu, Bishu Sarkar and Sahadeb Sarkar were engaged in assaulting the victim Raju Bose by fist and blows. Accd. Tarit Kundu gave a blow on the back of the victim Raju Bose with the help of a `bhojali' which I noticed."

5. According to PW 5 Kanai Sarma:-

"I had proceeded near the place of occurrence. I saw the accused Tarit Kundu who had given a blow on the back side of Raju Bose with the help of a `bhojali'. Acd. Tarit Kundu, Sahadeb Sarkar, Bishu Sarkar, Sasthi Sarkar, Paresh Sarkar and Sukumar Ghosh caught hold of Raju Bose and there was a scuffle between themselves."

6. The medical evidence on record was unfolded through PW 9 Dr. Rashbehari Ghosh who found:-

"One stab-wound transverse like margin incised 2" long on the left side of chest, 1½" from midline on the back. Tracing the track it is found to perforate lung upper part of lower lobe through and through including other soft tissues in the well causing fatal bleeding.

Opinion:- Death was due to shock as a result of ante mortem wound and haemorrhage as stated, homicidal in nature.

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The wound was inflicted from backside and perforated whole of the lung."

7. The injury found in the post mortem report was completely consistent with the ocular version of prosecution witnesses PW 2, PW 3 and PW 5 and the author of this injury according to the witnesses was accused No.1 Tarit Kundu. Special Leave Petition at the instance of Tarit Kundu having been dismissed the question that now arises is w