JUDGMENT :

(Debangsu Basak, J.) :

1. The appellants have assailed the judgement of conviction dated March 23, 2022 and the order of sentence dated March 24, 2022 passed by the learned additional Sessions Judge, 1st court, in Sessions Trial No. 36/2021 arising out of Sessions Case No. 68/2021.

2. By the impugned judgement of conviction, the learned judge has held that the appellants were guilty of the offence under section 302/34 of the Indian Penal Code, 1860. The learned trial judge has acquitted 7 of the co-accused of the charge under section 302/34 of the Indian Penal Code, 1860.

3. By the impugned order of sentence, the learned trial judge has sentenced the appellants suffer rigorous imprisonment for life and to pay a fine of Rs. 20,000 each and in default to suffer rigorous imprisonment for one year.

4. The case of the prosecution was that, 9 persons including the 2 appellants before us had on May 18, 2020 at 7:30 PM on the way to the mosque, restrained the victim and tried to strangulate him by a gamcha (Indian towel) and assaulted him with fists, blows, kicks, bamboo stick, and iron rod. The appellant No. 1 had provided one sharp cutting weapon to appellant No. 2 by which appellant No. 2 assaulted the victim. The victim had been murdered. All 9 accused persons had participated in the assault of the victim with the common intention of murdering him.

5. Learned senior advocate appearing for the appellants has submitted that, the prosecution failed to prove the charges beyond reasonable doubt. He has referred to the deposition of the prosecution witnesses. He has contended that, none of the prosecution witnesses claim that they had been present at the place of occurrence during the incident. According to him none had seen any of the appellants to assault the victim.

6. Learned senior advocate appearing for the appellants has submitted that, PW 1 and PW 5 were claimed to be the eyewitnesses to the incident by the prosecution. However, both such witnesses during their deposition at the trial had stated that they arrived at the place of occurrence only to find the victim dead. PW 1 had stated in the written complaint being Exhibit 5 as well as in her deposition that she arrived at the spot and saw the victim in injured condition and thereafter came to the hospital where he died. PW 5 had 3 different versions of the fact; one before the police under section 161 of the Criminal Procedure Code, one before the magistrate under section 164 of the Criminal Procedure Code and one before the court. According to him, both PW 1 and PW 5 were post occurrence witnesses. PW 5 had been declared hostile by the prosecution. There were contradictions in the statements made by PW 5 with those that had been recorded under section 164 of the Criminal Procedure Code.

7. Learned senior advocate appearing for the appellant has relied upon 2016 volume 13 Supreme Court Cases 333 (Baby @ Sebastian and another versus Circle Inspector of Police, Adimaly) and submitted that, the statement of PW 5 recorded under section 161 of the Criminal Procedure Code was not tendered in evidence and should not be looked into.

8. Learned advocate appearing for the State has submitted that, the prosecution produced two eyewitnesses to the incident at the trial. According to him, PW 1 and PW 5 had witnessed the incident of the murder. He has contended that, although PW 5 was declared hostile at the trial, nonetheless, his statement recorded under section 164 of the Criminal Procedure Code had been tendered in evidence and marked as an exhibit. In his statement recorded under section 164 of the Criminal Procedure Code, PW 5 had named the assailants. Therefore, since the statement of PW 5 had been tendered in evidence in examination in chief and marked as an exhibit, the court should look into the contents of such exhibited document and arrive at a finding against the appellants.

9. In support of his contentions learned Advocate for the State he has relied upon 2010 volume