IMPORTANT POINTS
Accused cannot be convicted u/s 304 Part I unless there is common abject to kill.
Sentence for lesser period for an offence under one provision may be ignored if accused is sentenced for longer period under another provision.

JUDGMENT :

ANIRUDDHA BOSE, J.

1. Both these appeals are directed against a judgment of conviction delivered by a Division Bench of the High Court at Calcutta on 5th February, 2009 finding the appellants guilty of offences under Part-I of Section 304 read with Section 149 of the Indian Penal Code as also under Section 148 thereof. The appellants in the Criminal Appeal No.1431 of 2013 are Dilip Shaw @ Sanatan and Uttam Shaw. In Criminal Appeal No. 1430/2013, there are three appellants, Paresh Shaw @ Parash, Gopal Prosad Sarkar @ Phatik and Mohd. Kayum Khan. Paresh and Gopal have been found guilty, in addition to the aforesaid provisions of the Code, under Section 9-B (2) of the Explosives Act, 1884. The Division Bench reversed the judgment of acquittal passed on 29th April, 1987 by the Additional Sessions Judge, First Court, Howrah in Sessions Trial Case No. XXI (4) of 1985. The appellants have been sentenced to undergo rigorous imprisonment for 10 years and pay fine of Rs. 5000/- each. In default of payment of fine, they have been directed to suffer further rigorous imprisonment for a period of one year in the judgment under appeal. The High Court did not award any sentence for offences other than part I of Section 304 read with Section 149 of the Code, considering award of said punishment as the rest were lesser offences. At the time the petitions for Special Leave to Appeal was instituted, one of the main grounds relied upon by the petitioners in support of the appeal was that the copy of the judgment of the Division Bench was not available. But the copy of the judgment of the Division Bench has been annexed to the counter-affidavit filed by the State marked annexure “R-9.” The appellants had also subsequently been supplied the certified copy of the judgment impugned. Because of this reason, applications were taken out by the appellants in both the appeals for raising additional grounds in support of the respective criminal appeals. In this judgment, we have considered these additional grounds. Arguments at length have been advanced before us on behalf of the appellants on the basis of the judgment under appeal.

2. The origin of the case lies in an incident that took place on 25th March, 1981, resulting in death of one Gurdev Singh and injuries to several members of his family. It has been recorded in the judgment of the Division Bench that there was past enmity between the family members of the deceased and his assailants. On behalf of the appellants, it was submitted that there was no basis for referring to past enmity by the High Court. From the evidence of a prosecution witness Jagar Singh (P.W.8), we find that appellants Paresh and Gopal were witnesses in a case in which said Jagar was an accused. It has been stated by Jagar in his cross-examination that in the said case, allegation was that Jagar and his brother had assaulted Nageswar. This fact, in our view, could lead to the inference of there being past enmity between the respective families.

3. Prosecution version of the case is that in the morning, at about 7.30 A.M. on 25th March 1981, a boy had come to the residence of Sarban Singh (P.W. 6) and reported that someone had come to see him. Sarban then went out of his residence and met the visitor nearby. That visitor happens to be one Suresh Rampuria, who was also a prosecution witness (P.W.5). He was, however, declared hostile. Suresh had some business relationship with a member of the family of the deceased. While these two individuals were talking to each other, around 14/15 persons surrounded Sarban and started assaulting him. The location of the place of occurrence was Belilious Road in Howrah. The residence of the family of the victims is on a lane adjacent to Belilious Road, though the street address of the victims’ residence is 326/1, Belilious Road. The area where victims reside is known as “Vistipara”. In the Trial Court’s judgment, the distance of the victims’ house has been recorded to be about 40-45 ft. fro