ORDER :

1. Heard Mr. Pijush Roy, learned counsel appearing for the appellants and Ms. Astha Sharma, learned counsel appearing for the respondent (State of West Bengal).

2. This appeal has been filed by six appellants questioning the judgment and order dated 27.7.2005 passed by the Division Bench of the Calcutta High Court affirming the conviction of appellant Nos. 1 to 6 under Section 148, Section 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC”). The learned counsel for the appellants has pointed out that Appellants No. 5 Abdur Rahman has died. Appellant No. 2 and appellant No. 6 are absconding.

3. In view of the above, the appeal stands dismissed against appellant Nos. 2 and 6 and stands abated against appellant No. 5. We thus have to consider the appeal only on behalf of the appellant No. 1 Jafel Biswas, appellant No. 3 Bhiku Sk. and appellant No. 4 Saidul Islam.

4. The prosecution case in brief is that on 25.9.1985 at about 10.30 a.m. victim Mokshad Ali and one Abdus Salam were proceeding towards their respective schools starting from their village Ambarpur on separate bicycles and the de facto complainant Siddik Sk. was behind them on his own bicycle.

5. Mokshed Ali was a school teacher whereas Abdus Salam was also a teacher in the same school. Modshed Ali was also the Anchal Pradhan for the last seven years. When Mokshad Ali and Abdus Salam reached near the wheat grinding mill, the accused Jafel Biswas assaulted the victim with a lathi as a result of which victim fell down from the cycle and then other accused persons started assaulting the victim with hasua causing severe injuries on his body and the victim succumbed to his injuries on the spot.

6. Abdus Salam who was accompanying the victim on bicycle was at a distance of about 15/16 cubits ahead and on hearing the cry, he looked back and saw the accused. The police was informed and a FIR was lodged at about 3.15 p.m. in the afternoon. Written complaint was submitted and inquest was prepared and post mortem was conducted. In F.I.R. names of 7 accused persons were mentioned which included name of all the appellants. A report under Section 157 of the Code of Criminal Procedure, 1973 (Cr.P.C.) could be sent to the Magistrate after delay of about 3 months i.e. on 20.12.1985 and the Magistrate initiated the order sheet on 20.12.1985 on the basis of the F.I.R. A chargesheet was submitted against 10 accused persons. Trial court discharged two persons and only 8 accused were sent on trial. The prosecution has produced 20 witnesses to support the prosecution case. None was examined on behalf of the defence.

7. The trial court after evaluating the evidence of all the witnesses of whom PW-1, PW-4, PW-7, PW-10 and PW-11 were treated as eye-witnesses. Trial court convicted the appellants under Section 148/302/149 IPC. All the appellants were sentenced to suffer life imprisonment.

8. Aggrieved by the conviction, the appeal was filed before the High Court.

9. The High Court after considering the submissions made before it, by way of impugned judgment had dismissed the appeal.

10. Aggrieved against the said judgment, this appeal has been filed.

11. Learned counsel for the appellant challenging the decision of the High Court submits that the fact that F.I.R. was lodged on 25th September, 1985 and the report under Section 157 Cr.P.C. could reach the Magistrate on 20th December, 1985 in which instead of seven names, 10 accused were mentioned, causes prejudice to the accused and this ground is itself sufficient to vitiate the conviction. Learned counsel further submitted that PW-11 who was accompanying the victim had named only three persons namely Hamidul, Moksed and Sader. He submits that since only three assailants were mentioned, the prosecution case falls on that ground itself as there were seven accused who have allegedly assaulted the victim. He further submits that apart from PW-11, there was no other eye-witness and the courts below had committed error in treating PW-1, PW-4,