Judgment :

Rajasekhar Mantha, J.

1. The subject appeal is directed against judgment and order of conviction dated 16.07.2012 passed by the Additional District and Sessions Judge, 2nd Court, Nadia in Sessions Trial No. IX (II) of 2012 arising out of Sessions Case No. 26 (2) of 2012. The appellants were convicted and sentenced to suffer life imprisonment and to pay a fine of Rs.10,000/- for offences punishable under Sections 302, 326 read with Section 34 of the IPC.

THE PROSECUTION CASE AND THE EVIDENCE ON RECORD

2. The appellants and victims were related to each other as brothers. The appellants and victims are 4 out of 6 brothers and 2 sisters. Raham Box Sk was their father. He had divided his properties equally amongst the 6 brothers. After the brothers received the property by way of registered instrument from their father, a dispute cropped up between them as to who would feed their parents.

3. In view of the reluctance and difference of opinion between the appellants and the victims, a meeting was called by one of the brothers namely Kalimuddin Sk at the house of the said father. In course of the meeting, there was a heated exchange between the appellants and the victims Ainuddin Sk and Shukur Ali Sk. The appellants are stated to have left the place of occurrence and returned back within 3 minutes with sharp cutting weapons which included a Bhojali, Hasua and a rod and a stick mounted with a metal fork. They assaulted the deceased victim Ainuddin Sk and Kalimuddin Sk.

4. To prevent the assault on the victims, the wife of Ainuddin and his mother are stated to have intervened. The mother was struck on the head with a hasua. Upon a hue and cry being raised by the wife of Ainuddin, PW 2 Hosai Bibi, the local villagers from a nearby mosque immediately rushed to the place of occurrence.

5. The appellants fled from the scene. Ainuddin and Kalimuddin were taken to Katwa Hospital where Ainuddin was declared brought dead. Kalimuddin, however, recovered after a few days.

6. The police are stated to have received information about the incident late in the night of the fateful day over the telephone. No GD entry was however recorded by the police on receipt of this information.

7. It is only after Ainuddin died, that PW 1 Mohiruddin Sk,hisfather-in-law, who came to the place of occurrence on being informed over the telephone by his daughter Hosai Bibi, filed a formal complaint with the Kaligunj PS. The complaint was scribed by PW 3 allegedly on the instructions of PW 1. It is surprising to note that none of family members from the side of the appellants or the victims lodged any complaint with the police.

8. Kaligunj PS registered the FIR no. 214 of 2011 dated 13.04.2011 at about 03:05 PM under Section 326, 307, 302 read with Section 34 against Alimuddin Sk, Asish Sk and Shukur Ali Sk. Shukur was the son of appellant no. 1 Alimuddin Sk.

9. Charges were framed against Aimuddin Sk and Shukur Ali Sk the two appellants herein under Section 326, 307 and 302 of the IPC. The other FIR named accused went absconding even before the charge sheet was filed.

10. It appears from the deposition of the PW 13, the Investigating Officer, that the statement of PW 2 under 164 of the CrPC was recorded two months after the incident. The statement of PW 5 Bakul Sk, the son of the deceased was not recorded under Section 164 of the CrPC.

ANALYSIS OF THIS COURT

11. There are some discrepancies between the witnesses for the prosecution as regards the exact place of occurrence. PW 1 and 3 stated that the PO was the house of the father of the victim. Whereas PW 2 and 5 stated that the PO was the house of Kalimuddin, the victim who recovered from injures. The aforesaid discrepancies can however be discounted since the father’s residence is also treated as the son’s residence or his children’ residence in general.

12. The appellants and victims received immovable properties from their father just few days before the incident. The house where the crime took place was one of such i