The main legal point established in the judgment is the distinction between culpable homicide and murder, and the requirement to establish the presence of special mens rea for the offence of murder under Section 300 IPC.

JUDGMENT :

Manish Choudhury, J.

This Criminal Appeal is preferred by three accused appellants, namely, (i) Noider Ali, (ii) Safer Ali and (iii) Nowsad Ali, against the judgment and order dated 16.08.2014 passed by the learned Sessions Judge, Dhubri in Sessions Case No. 155/2010, arising out of G.R. Case No. (FKJ) 78/2009, corresponding to South Salmara Police Station Case No. 186/2008, whereby they have been convicted under Sections 302/342/34 of the Indian Penal Code (IPC, in short) and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/-each, in default, to suffer simple imprisonment for 3 (three) months each for the offence under Section 302 IPC and further sentenced to pay a fine of Rs. 1,000/-each, in default, to suffer simple imprisonment of 15 days each for the offence under Section 342 IPC.

2. The prosecution case, in brief, is that on 13.06.2008, one Md. Jahan Uddin (P.W. 5) lodged an ejahar before the In-Charge of Bondihana Police Out Post under South Salmara Police Station against 7 (seven) numbers of accused persons, namely, (i) Md. Safer Ali, (ii) Md. Nowsad Ali, (iii) Taser Ali, (iv) Noidar Ali, (v) Md. Hayet Ali, (vi) Md. Hashem Ali and (vii) Md. Sanesh Ali, where the Accused Nos. (i), (ii) and (iii) are the sons of accused No. (iv) Noidar Ali and accused Nos. (v), (vi) and (vii) are the sons of one Late Raham Ali. In the ejahar, the informant (P.W. 5) alleged that on 12.06.2008 at around 7.30 p.m., while his cousin (son of his uncle), Majam Ali was sitting in his own house, at that time, the accused persons, Safer Ali and Nowsad Ali, came to the house of said Majam Ali and having entered in to a conspiracy, called Majam Ali to the house of Safer Ali, wherein he was kept confined by locking the door. It was further alleged that all the 7 (seven) accused persons started assaulting Majam Ali with bamboo lathis (sticks) inside the house of Safer Ali and on being so beaten, said Majem Ali raised hue and cry. Hearing that, some of the neighbours though reached there, but the accused persons did not open the door. The informant stated that later when he came to know about the occurrence, he came to the place of occurrence and saw his cousin brother, Majam Ali lying dead on the floor inside the house of Safer Ali.

3. On receipt of the aforesaid ejahar on 13.06.2008, the In-Charge of Bondihana Out Post under South Salmara Police Station registered the General Diary Entry No. 147 dated 13.06.2008 at 8.30 a.m. and took up the investigation. He further forwarded the ejahar to the Officer In-Charge of South Salmara Police Station for registering a case. The Officer In-Charge, South Salmara Police Station received the said ejahar vide General Diary Entry No. 212 dated 14.06.2008 and registered the said ejahar as South Salmara Police Station Case No. 186/2008 under Sections 302/342/34 IPC (Exhibit-4). Later on, South Salmara Police Station Case No. 186/2008 stood transferred to Fokirganj Police Station and on 05.05.2009 the same stood renumbered as Fokirganj Police Station Case No. 78/2009 under Sections 302/342/34 IPC, corresponding G.R. Case (FKJ) No. 78 of 2009.

4. During the course of investigation, the Investigating Officer visited the place of occurrence and drew the sketch map (Exhibit-5). He also recorded the statements of the witnesses under Section 161, Code of Criminal Procedure, 1973 (Cr.P.C., in short). Inquest of the dead body of the deceased, Majam Ali was done by an Executive Magistrate on 13.06.2008 and the Inquest Report (Exhibit-1) was prepared. After the inquest, by preparing the Dead Body Challan (Exhibit-2) the body of the said of the deceased was sent for postmortem examination on 13.06.2008 to Dhubri Civil Hospital, Dhubri, wherein the postmortem examination of the deceased, Majam Ali was done on 13.06.2008 by Dr. Soumitra Pal (P.W. 2). On completion of the investigation and on obtaining the postmortem examination report of said Majam Ali (Exhibit-3), finding a prima facie cas