The main legal point established in the judgment is that the appellants had a common intention to murder the victim, and their actions did not fall within the exception for culpable homicide not amounting to murder.

JUDGMENT

Joymalya Bagchi, J. - appeal is directed against the judgment and order dated 29.04.2004 and 30.04.2004 passed by the learned Additional Sessions Judge, 4th Court, Howrah, in Sessions Trial No. 557 of 2003 convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and pay a fine of Rs.10,000/- each, in default to suffer rigorous imprisonment for a period of two months more.

2. Prosecution case, as alleged against the appellants, is to the effect that on the fateful day i.e. on 17.09.2003 when Biswakarma Puja was being celebrated, the appellants had been teasing girls. Deceased, namely, Shakti Sankar Kanrar objected to such undesirable behaviour of the appellants.

3. This enraged the appellants. They ran to the shop of one Sofiar Molla and brought out an iron pati (a flat iron rod) and upon the instruction of Abed Ali Sardar (appellant no. 2) appellant no. 1 (Khokan Sardar) struck on the head of the deceased. As a result, the deceased suffered bleeding injury on the head. He fell down at the spot. He was rushed to the hospital where he expired on 20.09.2003. First information report was lodged by Sandip Kanrar, brother of the deceased, on 17.09.2003 being Sankrail Police Station Case No. 136 of 2003 dated 17.09.2003 under Sections 326/307/34 of the Indian Penal Code. Upon death of the victim, Section 302 of the Indian Penal Code was added to the F.I.R. Appellants were arrested and the weapon of offence was recovered. Charge-sheet was filed against the appellants and charge was framed under Section 302/34 of the Indian Penal Code against the appellants and Sofiar Rahaman Molla. They pleaded not guilty and claimed to be tried. Defence of the accused persons was one of innocence and false implication. In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. On conclusion of trial, learned trial Judge by the impugned judgment and order dated 29.04.2004 and 30.04.2004 convicted and sentenced the appellants, as aforesaid. By the self-same judgment and order, learned trial Judge was pleased to acquit Sofiar Rahaman Molla of the charges levelled against him.

4. Mr. Chatterjee, learned Counsel appearing for the appellants argues that the place of occurrence has not been established. Investigating officer did not seize blood stains from the place of occurrence. None of the local shop owners was examined. Eye-witnesses are chance witnesses and their presence at the place of occurrence has not been established beyond doubt.

5. He further submits that iron pati and iron rod is not the same. Recovery of iron rod on the showing of the appellants has not been proved. No statement of the appellants was recorded during investigation. He also submits as co- accused Sofiar Molla has been acquitted, the prosecution case to the extent appellants had brought the weapon of offence from his shop has been disbelieved by the trial Judge. He further submits appellant No. 2 had not assaulted the deceased and did not share common intention to murder the victim. Incident occurred in the course of a sudden altercation and on the spur of the moment appellant No. 1 had dealt a single blow on the victim.

6. Hence, he did not intend to murder the deceased. Accordingly, he prays for acquittal of the appellants.

7. In reply, Mr. Bapuli, learned Additional Public Prosecutor submits that the appellants had been teasing girls in the locality. The deceased objected to such conduct. This enraged the appellants. They rushed to the shop of one Sofiar Molla and brought out an iron pati and surrounded the deceased. Thereafter, on the instruction of Abed Ali Sardar, appellant No. 2, Khokan Sardar, appellant No. 1 assaulted the deceased on his head. Victim suffered head injury which caused extensive damage to the internal organs and he died. Post mortem doctor (P.W. 12) stated that the injury was sufficient in ordinary course