The main legal point established in the judgment is the application of Section 34 of the IPC to establish the common intention of the accused persons and their participation in the commission of the offences.

JUDGMENT :

Bibek Chaudhuri, J.

These two appeals arise from the judgment and order of conviction and sentence passed in Sessions Trial No.418 of 2017; namely, Abu Fazel Fakir, Sakina Khatun, Ashma Begum, Sahanara Begum, Rausan Fakir, Sajehar Fakir, Mojehar Fakir, Sahida Begum.

2. The appellants in CRA 51 of 2017, were convicted for committing the offence under Section 324/34 of the IPC and sentenced to suffer imprisonment for two years each with fine and default clause.

3. The appellant, namely, Salam Mallick in CRA 18 of 2017 was convicted for the offence punishable under Section 304-(II)/324/34 of the IPC and sentenced to suffer simple imprisonment for three years with fine and default clause for the offence punishable under Section 304-(II)/34 of the IPC. The appellant also suffered punishment with simple imprisonment for two years with fine and default clause for the offence punishable under Section 324/34 of the IPC in Sessions Trial No.418 of 2009 by the learned Additional Sessions Judge, Uluberia, Howrah.

4. The appellants in both the appeals faced trial under the charge of Sections 341/326/323/506 and 304-(II)/34 of the IPC on the basis of a charge-sheet filed against them upon a written complaint submitted by one Noor Jahan Khatun with the officer-in-charge, Shyampur P.S on 15th May, 2008. In the written complaint, it is alleged by the de facto complainant that on 15th May, 2008 at about 1.30 pm her grand-father, Amantu Fakir was going to take bath in a pond near Kalitala, Pichaldaha. At that time, accused Nazir Fakir asked her grand-father as to why he had cast his vote to a rival political party. Nazir Fakir also wrongfully restrained him on his way to pond and abused him with filthy language. When Amantu Fakir raised protest against the said abusive language of Nazir Fakir, later assaulted Amantu with a stick. In the mean time, other accused persons namely Abu Fazal Fakir, Rausan Fakir, Nasir Fakir, Sajehar Fakir, Mojehar Fakir, Sakina Begum, Ashma Begum, Sahida Begum, Sahanara Begum and Ananuara Begum assembled at the place of occurrence and assaulted Amantu Fakir, Nader Kazi, Rustam Kazi Fakir, Saddam Kazi Fakir, Ruksana Khatun, Afsar Kazi Fakir and Rahima Begum seriously. They were medically treated in the local hospital. Amantu Fakir and Saddam Kazi were referred to bigger hospital for proper medical treatment.

5. During investigation of the case Saddam Hossain @ Saddam Kazi Fakir succumbed to his injury on 17th May, 2008.

6. During trial, prosecution examined as many as 17 witnesses. Amongst them the de facto complainant deposed in the trial court as PW1. PW2 is one Motiyer Rahaman who is the scribe of the written complaint. PW3 Amantu Fakir. PW.4 Rahima Begum and PW5 Rustam Kazi Fakir are the injured eyewitnesses. PW6 Jahadul Islam, and PW7 Mujibor Fakir also claimed to be the eyewitnesses of the occurrence. PW7 brought his father Amantu Fakir and four other injured persons to the hospital. PW8 Kazi Abdul Kader is a witness to the seizure of certain articles from the place of occurrence. PW13 Dr. Gautam Sarkar was posted as Medical Officer at Jhumjhumi Block Primary Health Center. On 15th May, 2008, he medically examined one Saddam Fakir who had defused swelling on left temporal region of head with a history of assault by one Nazir Fakir. PW9 Dr. Sagarika Bhattacharya was a Medical Officer attached to N.R.S Medical College and Hospital. On 16th May, 2008, she examined injured Saddam Hossain who was referred to the hospital from Uluberia Sub-Divisional Hospital. The injury report prepared by PW9 and PW11 were marked exhibits during trial of the case. Remaining witnesses except PW13, PW15, PW16 and PW17 are police personnel. PW13, PW15, PW16 and PW17 are Medical Officer including the Autopsy surgeon.

7. At the outset let me record that charge as aforesaid were framed against 10 accused persons. Amongst them accused Nasiruddin Fakir was acquitted from the charge by the learned Judge in the court below. From the evidence