The credibility of a minor witness, establishment of common intention, and proof of continuous torture under Section 498a/302/34 IPC were the central legal points established in the judgment.

JUDGMENT

Joymalya Bagchi, J. - This is second round of litigation. Earlier all the appellants had been convicted and sentenced under Section 498a/302/34 of the Indian Penal Code. The appellants appealed against such conviction and sentence. In the course of hearing of the appeal, a Division Bench of this Court noticed incriminating materials particularly the medical evidence on record had not been put to the appellants. On such premise, the matter was remanded to the trial Court for holding fresh examination under section 313 Cr.P.C. and to proceed with the trial from the stage after giving opportunity to the appellants to lead defence evidence, if they chose to do so. Upon remand, the trial Judge examined the appellants under section 313 Cr.P.C. Questions were put to them with regard to the medical evidence and other incriminating materials on record. appellants did not choose to adduce defence evidence. Upon hearing arguments of the parties, the trial Court again by the impugned judgment and order dated 12th May, 2016 and 13th May, 2016 convicted and sentenced the appellants for the commission of offences punishable under Sections 498a/302/34 of the Indian Penal Code. Hence, the present appeal.

This Court is informed during the pendency of the appeal, appellant No. 2 namely Jageswar Roy has expired. Hence the appeal abates so far as appellant No. 2 is concerned.

Mr. Dutta Gupta, learned advocate appearing for the appellants argued the sole eye-witness (P.W. 5) is not a reliable one. He was a student of Class-II at the time of occurrence. He was in the care of his maternal uncle who tortured him and brought him to Court to depose against the appellant. His evidence is not corroborated by other witnesses. allegation of physical assault by appellant Nos. 3 and 5, namely Kalabati Roy and Sabita Roy are embellishments in Court. He further submitted none of the appellants apart from appellant No.1 were armed. They did not share common intention to murder the victim. Hence, the appellants may be acquitted of the charges levelled against them.

Mr. abhra Mukherjee, learned advocate appearing for the State submits P.W. 5 is the son of the deceased housewife. His presence in the house is most natural. He clearly narrated the brutal assault upon his mother. all the appellants conjointly participated in the assault. Number of injuries were noted by the post-mortem doctor which corroborates the version of P.W. 5. The prosecution case is proved beyond doubt.

P.W. 5 (Kishan Roy) is the son of the deceased and the most vital witness in the case. He was studying in Class-II at Vivekananda Bidyapith at Kushida at the time of occurrence. Due to his tender age, the trial Judge posed questions to him to test his capacity to depose. Upon being satisfied of his competence, the trial Court recorded his evidence. He deposed all the appellants used to reside with his mother at the matrimonial house. They used to ill-treat and assault her. On the fateful day, his father, his grandparents and his two uncles assaulted his mother. Two uncles caught hold of his mother's hand and feet. His father assaulted her with lathi and pressed her neck. When she requested her grandmother to intervene, she stated 'let her die'. He disclosed the incident to his uncle Balaram and maternal uncle, Meghnath. His statement was recorded before Magistrate. He is presently residing with his maternal uncle at Bihar. He was extensively cross-examined. In cross-examination, he stated all the accused persons including his father assaulted his mother. His father was armed with lathi but the other accused persons were empty-handed. He also stated that he came to court with his maternal uncle.

Evidence of the minor has been criticized on the ground he was tutored by his maternal uncle who had brought him to court. I find little substance in such submission.

as the case essentially hinges on the eyewitness version of a minor, I have scrutinized his evidence with utmost care. It is true a witn