JUDGMENT :

Ananya Bandyopadhyay, J.

1. These appeals are preferred against the judgment and order dated 30.04.2009 passed by the Learned Additional Sessions Judge, 6th Fast Track Court, Bichar Bhavan, Calcutta in Sessions Trial No.1 of October, 2007 arising out of Sessions Case No.68/2007, thereby convicting the appellants i.e., Anup Shaw, Sudhir Shaw under Section 304 (Part-II)/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 6 years each and also to pay a fine of Rs.3,000/- each in default to suffer further rigorous imprisonment for 6 months each and others appellants i.e., Bikash Paswan, Md. Anwar under Sections 324/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 3 years and also to pay a fine of Rs.2,000/- each in default to suffer further rigorous imprisonment for 6 months each.

2. The prosecution case precisely stated on 30.04.2007 at about 16:15 hours two groups of boys brawled over positioning in a playground at Lovers Lane and K.P. Road beside Race-Course Ground, where a group of boys including the appellants were playing cricket and another group were to playing football simultaneously. Altercation aggravated when the group of boys i.e. the victims and the deceased in requested the appellants playing cricket to remove the stone which was not removed. Eventually, it was removed by the group of boys who had come to play football i.e. the victims and the deceased. The group of boys playing cricket formed an unlawful assembly being armed with stumps, cricket bats and brick bats and in furtherance of the common object assaulted those group of boys playing football as a result Md. Abir @ Md. Imran sustained severe head injury and Raja @ Md. Samir and Majid Alam also sustained injury. Md. Abir @ Md. Imran was removed to S.S.K.M. Hospital and there from to B.M. Birla Heart Research Centre where Md. Abir @ Md. Imran was declared brought dead and Majid Alam and Md. Samir @ Raja, the two injured persons were admitted at Ekbalpur Nursing Home.

3. On the basis of the statement of one Saddam Hossain (PW-2), Hastings P.S. Case No.94 dated 30.04.2007 was initiated against 15/20 unknown persons including the appellants for the offence under Sections 148/149/324/302 of the Indian Penal Code for investigation.

4. During the investigation 7 persons were arrested namely Bikash Paswan, Kushu Shaw, Md. Anwar, Anwar Ahmed, Anup Shaw, Sukdeb Dolui and Sudhir Kr. Shaw. Out of those 7 persons during identification parade, 2 persons namely Sukdeb Dolui and Kushu Shaw were not identified. The other 5 persons facing trial were duly identified by the witnesses. So, on completion of the investigation charge-sheet was submitted against 5 persons namely Bikash Paswan, Md. Anwar, Anwar Ahmed, Anup Shaw and Sudhir Kr. Shaw for the offence under Sections 148/149/324/304(Part-II) of the Indian Penal Code with a further prayer implicating two accused persons namely Kushu Shaw and Sukdeb Dolui be discharged for want of sufficient evidence. On receipt of the charge-sheet, the aforesaid accused persons were discharged by the Ld. Court of Metropolitan Magistrate, 11th Court, Calcutta vide order dated 27.07.2007.

5. Charges were framed against 5 appellants namely Bikash Paswan, Md. Anwar, Anwar Ahmed, Anup Shaw and Sudhir Shaw under Sections 148/149/324/304 (Part-II) of the Indian Penal Code to which they pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution examined as many as 21 witnesses and examined certain documents while the defence had also examined five witnesses.

7. The Learned Advocates for the appellant/Md. Anwar in CRA 327 of 2009 submitted as follows:–

i. “The prosecution examined as many as 19 witnesses to prove the case but the accused examined none.

ii. PW-2 Saddam Hossain whose evidence-in-chief says that Md. Abir @ Md. Imran fell down and there was a quarrel for removing of big stone that was lying there. That in his cross-examination he stated t