The evidence presented failed to establish intent to kill, leading to conviction under Section 304 Part II IPC rather than murder under Section 302 IPC.

JUDGMENT :

R. Mukhopadhyay, J.

1. Heard Mr. A.K. Kashyap, learned senior counsel for the appellant and Ms. Amiya Anusha, learned Amicus and Mrs. Nehala Sharmin, learned Special P.P.

2. This appeal is directed against the judgment and order of conviction and sentence dated 21.02.1997 passed by Shri P.N. Yadav, learned Sessions Judge, Dhanbad in S.T. No. 02/1996 whereby and whereunder the appellant no. 1 has been convicted for the offence punishable under Section 302 I.P.C. while the rest of the appellants have been convicted under Section 302 /34 I.P.C. and all the appellants have been sentenced to rigorous imprisonment for life.

3. The Fardbayan of Ishwarmani Rawani was recorded on 4.7.1995 in which it has been stated that on the same day at 9.30 a.m. the accused persons started abusing the inmates of the house of the informant and when the father of the informant namely Arjun Rawani returned home after performing puja in the temple the accused persons became silent. The informant thereafter went to take bath in a nearby tank and when he was coming back, he saw the accused persons and the inmates of his family engaged in a quarrel at which the informant forbade his family members not to indulge in such act. The informant thereafter went inside his house despite being prevented from entering by the accused persons. It has been alleged that the informant after entering into the house saw Ashutosh Rawani and Basudeo Rawani standing at the door of his father while Khedan Rawani was twisting the neck and mouth of the father of the informant and was assaulting on his mouth which resulted in his death. The cause of the incident is a long-standing land dispute.Based on the aforesaid allegations, Baghmara (Mahuda) P.S. Case No. 201/1995 was instituted under Section 302 / 34 IPC. On completion of investigation, charge sheet was submitted and after cognizance was taken the case was committed to the court of Sessions where it was registered as S.T. No. 02 of 1996. Charge was framed against the accused under Section 302 / 34 IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as 11 witnesses in support of its case.

5. P.W.1 Budhan Rawani has stated that he had heard that Arjun Rawani was murdered by Khedan, Sudan, Pawan and others. He has proved his signature on the seizure list of broken tooth which has been marked as Exhibit-1.

6. P.W.2 Kailash Rawani has proved his signature on the seizure list which has been marked as Exhibit-1/1.

7. P.W.3 Tulsi Rawani has stated that he does not know as to how Arjun Rawani had died.

8. P.W.4 Arjun Rawani did not support the case of the prosecution and was declared hostile by the prosecution.

9. P.W.5 Iswarmani Rawani is the informant who has stated that his father was murdered on 4.7.1995. It was around 11 a.m. and he had returned home after having a bath when he was prevented from entering and was stopped at the courtyard by Sudan Rawani, Pawan Rawani, Dhiran Rawani, Nathu Rawani and Meghu Rawani. When he somehow managed to reach the door of his house he saw Khedan Rawani twisting the mouth of his father and hitting him on his mouth with fists and the sons of Khedan Rawani namely Ashutosh Rawani and Basudeo Rawani were standing inside the room with Tangi in their possession. When he raised a cry of alarm, the villagers started assembling at which the accused persons fled away. He found his father lying dead on the cot with one tooth broken. The reason for the occurrence is the dispute between both the sides with respect to a land situated in the alley. He has proved his signature in the Fardbayan which has been marked as Exhibit-1/2. In cross-examination he has depo