The omission to frame a charge under Section 149 of the IPC does not invalidate a conviction for murder under Section 302 if the prosecution's case demonstrates clear intent and common objective among the accused.

JUDGMENT :

PRASENJIT BISWAS, J.

1. This appeal is directed against the impugned judgment and order of conviction dated 14.02.2020 and 15.02.2020 passed by the learned Additional Sessions Judge, at Kandi, Murshidabad in connection with Sessions Trial No. 06(04)/2018 corresponding to Sessions Serial No. 82 of 2018 arising out of G.R. Case No. 1742/2017.

2. By passing the impugned judgment these appellants were found guilty for commission of offence punishable under Section 302/34 read with Section 149/34 of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for life along with fine of Rs. 10,000/- each. The appellant Edel Khan alias Edel Sk. was also further convicted under Section 323 of the Indian Penal Code and he was sentenced to suffer imprisonment for six months along with a fine of Rs. 1000/-.

3. Brief facts relevant and essential for the disposal of this appeal are as follows:

“One Khalil Sk., father of the victim had lodged a written complaint before the police station stating, inter-alia, that on 22.09.2017 at about 5.30 P.M. when his son Sujan Sk. was returning home from the school then all the accused persons armed with ‘jhaba’, ‘lathi’, ‘iron rod’ attacked the victim at the place of occurrence and assaulted him and as a result the victim sustained grievous injury on his head and body. The de-facto complainant tried to rescue his son from the clutches of the accused persons but they also attacked him and caused injury over his body. This de-facto complainant and his son were brought to Khargram B.P.H.C. for treatment, the victim was not admitted in the hospital but was transferred to Murshidabad Medical College and Hospital and from there he was transferred to Nilratan Medical College, Kolkata but before moving from the Murshidabad Medical College and Hospital the victim died.”

4. Over the complaint a case being Khargram P.S. Case No. 348/2017 dated 22.09.2017 was started under Section 341/323/325/308/506/34 of IPC against the accused persons namely, Edel Khan, Horai Khan, Nurmahammad Khan, Ajai Khan and Jewel Sk. The case was handed over to S.I., Jayendu Debnath to investigate the case and during investigation he submitted a prayer for adding Section 302 of the Indian Penal Code before the learned S.D.J.M., Kandi and his prayer was allowed. After completion of investigation charge-sheet was submitted by the prosecuting agency against the accused persons namely, Edel Khan @ Edel Sk., Samirul Sk. @ Nurfaj Sk., Alai Khan, Horai Khan and Jewel Sk. under Sections 341/323/325/308/506/34 of IPC showing the accused persons namely, Alai Khan, Horai Khan and Jewel Sk. as absconders.

5. Charge was framed against Edel Khan @ Edel Sk., Samirul Sk. @ Nurfaj Sk. Nur Mahammad Khan and Horai Khan under Sections 302/34 and 308/34 of the Indian Penal Code.

6. In this case, 12 (twelve) persons were cited as witnesses to the prosecution. Documentary as well as seized articles were marked as exhibits in this case. Neither any oral nor any documentary evidences were adduced on behalf of the appellants.

7. Mr. Kusal Kumar Mukherjee, learned Advocate for the appellants said that there are lots of discrepancies between the statements of the witnesses. It is said that most of the witnesses are close relatives of the victim and they are highly interested persons in this case and as such, their testimonies cann