ASHIM KUMAR BANERJEE.J:

1. THIS APPEAL:-

Vide judgement and order dated January 22 , 1998 passed by the learned third Additional Session Judge, Howrah altogather seven appellants were convicted under Section 302 of the Indian Penal Code read with Section 34 thereof inter alia for committing murder of a local Councillor at Bally. Being aggrieved by and dissatisfied with the said judgement and order of the learned Additional Session Judge, the seven appellants filed the instant appeal and obtained release on bail by way of suspension of sentence. After the appeal was made ready and started appearing in the list all the appellants absconded and nobody represented them before the court. As a result, the court could not take up the hearing subsequently the appellants numbers three, four and seven could be apprehended as per the report of the Police.

Appellant number five died during the pendency of the appeal. The appellants numbers one, two and six are still at large. We gave adjournments from time to time to enable the Superintendent of Police, Howrah to find out the absconded appellants and arrest them. Despite several opportunity being given the Police could not apprehend them. In such circumstance, we were compelled to proceed with the hearing of the appeal only in respect of appellants number three, four and seven who were represented before us through learned advocates mentioned above.

2. INCIDENT:-

On May 23, 1996 the Police received a complaint from Shankarlal Agarwal (PW-1) at about 13.40 hrs. to the effect that at about 12.30 p.m. Md. Samim, the local councillor came to the Public Call Booth belonging to Shankrlal at 105/1, Jay Bibi Road under Police Station Bally. Samim asked for a glass of water. When Shankarlal was about to bring water for Samim, a young man aged about twenty five / twenty seven years came with a double edged sword in hand and assaulted Samim with the said sword. Samim caught hold of the sword with his two hands and forcibly pushed the assailants towards the road. Samim started running along with Joy Bibi Road towards the gate of Victoria Cotton Mill having bleeding injury in his hand. The assailants chased him with bombs, bhojalis and other weapons in hand. Chintu aged about four years, nephew of Shankarlal suddenly came in front of the shop. Assailants hurled bombs when Chintu sustained injury in his leg by a bomb splinter. Samim fell down on Joy Bibi Road when Shankarlal getting scared, closed the shutter. After some time he came out and found Samim lying dead in front of premises number 106, Joy Bibi Road having severe bleeding injuries. The entire incident took place within five / six minutes when the assailants fled away. The Police carried on investigation and arrested eight accused including seven appellants. All of them pleaded not guilty and opted to be tried. The learned Sessions Judge acquitted Md. Kurban of the charges brought against him and convicted rest seven accused holding guilty of the offence committed under Section 302 read with Section 34 of the Indian Penal Code. They were sentenced for life coupled with a fine of rupees five thousand and in default to suffer rigorous imprisonment for a period of two years each.

3. EVIDENCE :-

PW- 1 (Sankarlal Agarwal) :-

Sankarlal Agarwal had a Telephone booth at premises no. 105, Joy Bibi Road. The victim Dr. Shamim Khan was the councillor of Bally Municipality. He was a popular political leader. At about 12.30 p.m. Shamim came to the shop and asked for a glass of water. When Shankarlal came out of the shop to collect water he heard abusive language being addressed to Shamim. Once he turned around he found a person came running and assaulted Shamim on the head by a sword. The person was known as Gama (Appellant No. 1 ). Witness misidentified Gama on dock. He did not know Gama. Local people identified Gama to him. Dr. Shamim could hold the person who assaulted him with the sword and pushed him out. His four and half years old neph