A person is guilty of murder if he causes the death of another person with the intention of causing bodily injury to that person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

Girish Chandra Gupta, J.: This appeal is directed against a judgment dated 21st July, 2000, passed by the learned Additional Sessions Judge, 3rd Court, Midnapore, in Sessions Trial No. 34 (September) of 1993 arising out of G.R. Case No.240 of 1991 convicting the appellant. Abdul Khalek, under section 302 of the Indian Penal Code, and an order dated 25th July, 2000, by which the appellant. Abdul Khalek was sentenced to undergo rigorous imprisonment for life as also to pay fine of Rs.5,000/-, in default to suffer further rigorous imprisonment for a period of one year.

2. Briefly stated the facts of this case are as follows:

On 17th May, 1991, at about 5.30 p.m. five accused persons, including the appellant, Abdul Khalek, armed with deadly weapons including a sword attacked the deceased, Mobarak Ali. Hearing the hue and cry the relations of the deceased naturally went to rescue him. They were also assaulted. Mobarak Ali was removed to the local hospital from where he was referred to the P.G. Hospital at Calcutta. He was admitted in the night at 2.30 a.m. He died at 1.30 p.m. on 18th May, 1991. A written complaint was lodged within less than three hours from the occurrence indicating therein the names of the assailants. They were five in number which included the appellant, Abdul Khalek. On the basis of the written complaint G. R. Case No.240 of 1991 was started under section 147/148/149/324/325/326 and 327 of the Indian Penal Code. Section 302 of the Indian Penal Code was subsequently added. Seven persons were charged under the aforesaid sections. Six of them were acquitted and the appellant, Abdul Khalek, was convicted initially by a judgment dated 14th August, 1997. He was sentenced to suffer rigorous imprisonment for life as also to pay a fine of Rs. 10,000/-.

3. An appeal against the judgment and order was preferred which was registered as C.R.A. No.276 of 1997. The appeal was allowed by remanding the matter to the learned Trial Court with directions to frame a. specific charge under section 302 of the Indian Penal Code against the appellant, Abdul Khalek, and further directions to the learned Trial Court to recall such of the prosecution witnesses as the defence might desire to further cross-examine. It is not in dispute that after the matter went back to the learned Trial Court, the learned Trial Judge framed a charge under section 302 of the Indian Penal Code against the appellant on 20th April, 2000. On 20th April, 2000, itself submission was made on behalf of the defence that they did not want to further cross-examine any of the witnesses of the prosecution. It is on this basis that the learned Trial Judge fixed the date for examination under section 313 of the Code of Criminal Procedure. The learned Trial Judge, after examining the appellant, Abdul Khalek, passed the judgment and awarded the sentence indicated earlier.

4. Since no one appeared, on behalf of the appellant, we appointed Mr. Pradip Kumar Roy, a learned Advocate of this Court, to represent the appellant, Abdul Khalek. At the hearing Mr. Joymalya Bagchi, learned Counsel, also appeared and sought for leave to assist Mr. Roy. Such leave was granted. Mr. Roy, learned Advocate, has advanced the following submissions:

(a) The story to be found in the written complaint has largely been developed and embellished by the witnesses in Court;

(b) the evidence of the eye-witnesses is contradictory.;

(c) all the eye-witnesses talked about an injury by sword whereas postmortem report goes to show that there are as many as ten injuries found on the deadbody of the deceased, Mobarak Ali;

(d) lastly, it was submitted by Mr. Roy, learned Advocate, that the case of the defence, is that the deceased, Mobarak Ali, was killed by militants.

5. He relied on the evidence of the D.W.1, Nirmal Jana, an employee of "Ganashakti Patrika" of Calcutta.

6. Mr. Joymalya Bagchi, learned Counsel, appearing for the appellant, supplemented the submission of Mr. Pradip Kumar Roy, learned Advocate.