ARUN KUMAR BHATTACHARYA, J.

(1) THE hearing stems from an appeal preferred against the judgement and order of conviction and sentence passed by the learned Additional Sessions Judge, Hooghly in Sessions Trial No. 39/ 1993 [s. T. No. 2 of February, 1995] on 10. 3. 1995.

(2) THE miniaturised version of the prosecution is that on 8. 9. 91 at about 3. 00 p. m. when the de facto complainant Kartick Roy (PW. 1) was catching fish nearby his house from a tank named "nolo Pukur", accused Parimal Saha, who took lease of the said tank for making pisciculture, along with accused Monoj Roy and three others suddenly appeared there and caught hold him. While his elder brother biswanath Roy came to his rescue they leaving the complainant caught hold him resulting in a scuffle between them. The complainant reported the matter to his house and a few neighbourers. Anjali Roy (PW. 2) rushed to the P. O. for saving her husband Biswanath. Accused Monoj struck Biswanath with a knife on his left hand and left side of his back and then all of them started fleeing away. The complainant along with neighbourers Madan Roy (PW. 3), Shibu Roy (PW. 15), paltan Roy (PW. 9), Sanatan Roy (PW. 8), Lakshmi Roy (PW. 7), Dipu Roy (PW. 16)and many others chased them and could apprehend one Ashok Roy who confessed that accused Parimal brought them to commit murder for prevention of catching fish from the tank. Biswanath on his way to hospital succumbed to his injuries. Hence, all the six accused persons were charged under section 302/34 IPC.

(3) THE defence case is a denial of the commission of alleged offence.

(4) AS many as twenty-one witnesses were examined on behalf of the prosecution, whereas none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record the learned Court below while acquitted accused Ashok Roy and three others of the charge, convicted accused Parimal Saha and Monoj Roy under section 302/34 IPC and sentenced them to suffer imprisonment for life.

(5) BEING aggrieved by, and dissatisfied with, the said order of conviction and sentence, accused Monoj and Parimal preferred the present appeals being cra No. 52 of 1995 and CRA No. 38 of 1995 respectively, out of which on account of death of Parimal the latter appeal i. e. CRA No. 38 of 1995 was abated.

(6) ALL that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence against the appellant Monoj.

(7) OUT of the above witnesses, sole eye-witness PW. 4 Bhiva Roy - wife of the victims brother, PW. 7 Lakshmi Roy and PW. 8 Mrityunjoy @ Sanatan Roy-cousin brothers of the victim, autopsy surgeon PW. 11 Dr. Santi Kumar Ghosh and PW. 21 I. 0. SI. A. A. Mollah are vital, balance witnesses being either formal or are of little or no aid to the prosecution.

(8) BEFORE examining the evidence of the said important witnesses, the evidence of other witnesses may be discussed.

(9) PW. 1 Kartick Roy (de facto complainant), who was declared hostile by the prosecution, did not see who attacked and killed his brother Biswanath. He gave ezahar at the PS under the instructions of others. According to him, local people chased the miscreants and caught one Ashok Roy, and his brother on way to hospital succumbed to his injuries. PW. 2 Anjali Roy -wife of the victim, found her husband injured and dead, but she did not see anybody to attack and assault her husband. As per evidence of PW. 3 Madan Roy - nephew of PW. 1 there was a dispute on the date of occurrence when Kartick (PW. 1) went to catch fish from Nolo Pukur and later Biswanath also went there. He found parimal Saha, who took lease of the pond, by the side of the pond on the date of occurrence, and Biswanath was attacked and killed by the men who took lease of the said pond but he did not see who actually assaulted Biswanath. A man was caught soon thereafter but he cannot tell his name. He did not chase the miscreants which is c