The quality of evidence is crucial in establishing guilt, and irrefutable proof is necessary to convict the accused.

JUDGMENT

Bibek Chaudhuri, J. - This is an appeal under Section 374(2) of the Code of Criminal Procedure filed by the convicts/appellants (in jail) assailing the judgment and order of conviction and sentence dated 30th April, 2018 passed by the learned Additional Sessions Judge, 2nd Court at Jangipur, Murshidabad in Sessions Trial No.169 (Jan) of 2009 corresponding to Sessions Case No.208 of 2008 arising out of Sagardighi Police Station Case No.77 of 2006 dated 20th June, 2006.

2. During trial the learned Sessions Judge, 2nd Court, Jangipur, District Murshidabad held the appellants guilty for committing offence under Sections 304 (Part-II)/323/34 of the Indian Penal Code, convicted them and sentenced them to suffer rigorous imprisonment for five years each for committing offence under Sections 304 (PartII)/ 34 of the Indian Penal Code and to suffer rigorous imprisonment for three months for the offence under Sections 323/34 of the Indian Penal Code.

3. Sagardighi Police Station Case No.77 of 2006 was registered on the basis of a written complaint submitted by one Badrul Sk. On 20th June, 2006 alleging, inter alia, that on 15th June, 2006 at about 12 noon the uncle of the de facto complainant and other persons were abusing his father with filthy language over a land dispute. When the de facto complainant protested, his uncle called his sons and brother. They rushed to the place of occurrence being armed with iron rod, 'sabal' etc. Then they started assaulting the father of the de facto complainant and him by 'lathi', iron rod and 'sabal'. They severely assaulted the father of the de facto complainant on his head with the help of iron rod and 'sabal'. As a result of such assault he fell down on the ground senseless. The accused persons also assaulted the de facto complainant on his right hand. In the meantime, local people assembled at the spot and seeing them the accused persons fled away. The defacto complainant and his father were taken to Sagardighi Hospital. He was discharged on the next day of the incident but his father was referred to Berhampore Distrct Hospital for better medical treatment. However, the father of the de facto complainant expired on 19th June, 2006 at 4 A.M.

4. It is also stated by the de facto complainant that he could not lodge the FIR earlier as he was busy for his father's medical treatment.

5. On the basis of the said complaint police registered Sagardighi Police Station Case No.77 of 2006 under Sections 304/34 of the Indian Penal Code and took up the case for investigation. On completion of investigation police submitted charge sheet against four FIR named accused persons under Sections 304/323/34 of the Indian Penal Code.

6. Trial of the case was taken up by the Learned Additional Sessions Judge, 4th Fast Track Court at Jangipur. He framed charge against the accused persons including the appellants under Sections 323/34 of the Indian Penal Code and Sections 304 (Part-II)/34 of the Indian Penal Code. The accused persons pleaded not guilty and accordingly trial of the case commenced.

7. It is found from the lower Court record that the prosecution examined 14 witnesses to establish charge against the accused persons. Amongst them, P.W.1, Badrul Sk. is the de facto complainant. P.W.8, Aklema Bibi is the mother of the de facto complainant and widow of Kuddus Sk., since deceased. P.W. 11, Dr. Debasish Ghosh is the autopsy surgeon who performed post mortem examination over the dead body of the deceased Kuddus Sk. P.Ws. 12, 13 and 14 are the police officers who had specific role during investigation of the case.

8. It is important to note that P.W.2, Motiur Rahaman could not state anything about the incident. P.W.6, Ahamad Sk. and P.W.7 Madeswer Sk. did not support the prosecution case and they were declared hostile by the prosecution. Other witnesses are absolutely formal in nature and of no relevance in deciding the instant appeal. Series of documents were marked exhibits which I propose to refer in the b