The court emphasized the reliability of eyewitness testimony and dying declarations in establishing culpable homicide in chaotic situations, affirming the principle of constructive liability under IPC.

1. The appeal is directed against judgment and order dated 23.09.2019 passed by the learned Additional Sessions Judge, 3rd Court, Cooch Behar in Sessions Trial No. 12(4) of 2011 arising out of Sessions Case No. 46 of 2009 convicting the appellants for commission of offence punishable under Section 304 Part-I of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for ten years each and to pay fine of Rs.5,000/- each, in default, to suffer simple imprisonment for three months more. By the self same judgment and order they have also been convicted along with Puspa Kanta Debnath, Nachimuddin Mia, Kasem Ali and Bikash Debnath for commission of offence punishable under Sections 148 /324 of the Indian Penal Code and to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for one month more on such count.

Genesis of the case :-

2. Prosecution case as alleged against the appellants is as follows :-

On 04.05.2005 a Gram Sansad Sabha was to be convened at Rashidanga booth. In order to prevent their opponents from attending the Sabha, a fight broke out between two political groups infront of the house of Goni Mia, appellant no.2 herein. In course of the fight, Goni Mia, his son Samsul Hoque, Abdul Sattar, Abdul Aziz (both sons of Nachimuddin Mia) assaulted Khaibar Ali with ballam and knife. In course of the fight, Jamiruddin Mia (PW 2), Jahangir Alam (PW 3), Nurul Mia (PW 4), Ulbat Ali (PW 7), Amir Ali (PW 8) and one Akkas Ali also suffered injuries. They were medially treated at MJN Hospital, Cooch Behar. Khaibar Ali was shifted to North Bengal Medical College & Hospital where he expired on 08.05.2005.

3. Written complaint was lodged by PW 1 being Kotwali Police Station Case No.124 of 2005 dated 04.05.2005 under Sections 143/323/324/325/506/34 of the Indian Penal Code . After the death of Khaibar Ali, Section 304 IPC was added.

4. In conclusion of investigation, charge sheet was filed and charges were framed against the appellants and nine others under Section 148 IPC, Section 323 IPC (for causing hurt on Khaibar Ali, Akkas Ali, Amir Ali, Nurul Mia, Urbat Ali and Jamiruddin Mia), Section 324 IPC (for causing hurt on Khaibar Ali, Akkas Ali, Amir Ali, Nurul Mia, Ulbat Ali and Jamiruddin Mia with khapor, ballam, bow, arrows and firearms) and Section 304 IPC for the death of Khaibar Ali. To prove its case, prosecution examined 23 witnesses and exhibited a number of documents.

5. In conclusion of trial, learned trial Judge by the impugned judgment and order dated 23.09.2019 convicted and sentenced the appellants, as aforesaid. Co-accused viz. Puspa Kanta Debnath, Nachimuddin Mia, Kasem Ali and Bikash Debnath were also convicted and sentenced under Sections 148 /324 of the Indian Penal Code . While the appellants have assailed their conviction and sentence, the co- accused have not appealed against their conviction.

Arguments at the Bar :-

6. Learned Advocate for the appellants submits that the prosecution witnesses are interested parties. They belong to rival political groups. Place of occurrence has not been established. There was a free fight and counter-case was registered. PW 2 & PW 4 are accused in the counter case. Dying declaration of the victim recorded in the hospital (Ext. 5) does not specifically names of his assailants. Appellants have been falsely implicated and are entitled to an order of acquittal.

7. On the other hand, learned Advocate for the State submits injured eyewitnesses particularly PWs 4 & 8 vividly