JUDGMENT Datta, J. Nine appellants/namely, Subhas Das, Smt. Bela Das, Gunamoy Das, Sankar Sur, Smt. Sandhya Sur, Baren Bauri, Sambhu Bauri, Sibu Bauri and Madan Bauri have preferred this appeal against the judgment and the order dated 24th February, 1998 passed by learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No. 6(9) of 1998, arising out of Sessions Case No. 2(6) of 1993 convicting thereby the appellants under Section 302 read with Section 149 of I.P.C. and sentencing each of them to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- each in default to suffer further R.I. for a period of five months each and further convicting them under Section 323 read with Section 149 of I.P.C. and sentencing on that score to each of them to suffer R.I. for a period of one year and to pay a fine of Rs. 200/- each in default to suffer further R.I. for a period of two months and further convicting them under Section 148 of the I.P.C. and sentencing each of them to suffer R.I. for three years under that section of the law with a fine of Rs. 300/- each in default to suffer further R.I. for a period of three months each. 2. The crux of the prosecution case was as follows:- At about 8 a.m. on 20th November, 1989 one Sishir Kumar Patra of village Onda had come to Kalisen Market and in his absence from home the appellant Subhas Das came hear his house and abused in slang words against the women members of the house. When he returned home at about 9.30 a.m. Subhas started abusing him. Then all the appellants jointly pounced upon him by coming to his house being armed with lathi, stone, bhojali, tangi and hansua. The appellant Baren first caught hold of him and assaulted him on his leg by lathi. He fell down. Then Binod Das caught hold of his elder brother Kamala Kanta Patra and then Subhas, Gunamoy, Belarani, Sandhya and many others severely assaulted Kamala Kanta Patra by kicks and blows. Kamal fell on the ground and became senseless. Kamal started trembling and was unable to speak. In such a situation, even though Sishir had sustained injury in his leg he reached Kamala Kanta and then his relations, namely, Subhas Patra, Nemai Patra, Bhaskar Hazari rushed to Kamala Kanta with water. Kamal fell on the ground and became senseless. Kamal started trembling and was unable to speak. In such a situation, even though Sishir had sustained injury in his leg he reached Kamala Kanta and then his relations, namely, Subhas Patra, Nemai Patra, Bhaskar Hazari rushed to Kamala Kanta with water. Many other village people also came, and one Debasis Patra also came and found Kamal dead. Sishir came to Onda P.S. in the cycle of Nemai Patra and made a complaint with the Onda P.S. which is the F.I.R. (Exhibit 1). 3. The F.I.R. under Sections 147/148/337/323/334 was registered at 11.30. a.m. on 20th November, 1989 against eleven persons (Exhibit 7). 4. On completion of investigation charge-sheet was submitted against the accused persons under Sections 147/148/337/323/34 of the I.P.C. 5. The learned Trial Court framed charges against the ten accused persons under Section 302 read with Section 149 of I.P.C. on account of committing murder of Kamala Kanta Patra and under Section 323 read with Section 149 on account of causing hurt to Sishir Kumar Patra pursuant to a common object and upon examination of eleven prosecution witnesses and that of the accused persons under Section 313 of Cr.P.C. recorded the judgment and order of conviction and sentence. 6. The grounds of appeal are that the learned Trial Court misdirected itself in appreciation of evidence of the witnesses and the evidence on record do not justify the impugned judgment and order of conviction and sentence. 7. Before proceeding to the analysis of evidence so as to ascertain as to whether the learned Judge in the Court below was or was not justified in recording the judgment of conviction it is worthwhile to record in brief the evidence in a nutshell of the prosecution witnesses. 8. Of the twelve witnesses examined by the prosecution, the evidence of P.W.1, Sishir Kr. Patra (FIR maker), P.W.4, Nemai Ch. Patra, P.W.5, Asit Bardhan and P.W.5, Nanda Dulal Patra merit serious consideration P.W.5 is a relation of the deceased, while P.W.6 is the younger brother of P.W.1. 9. About the formal witnesses we have P.W.2, Srikanta Patra, who was a witness to the holding of inquest by the police and he signed in the inquest report (Exhibit 3). P.W.3, Bhaskar Hazari, who according to the prosecution was a witness to the incident turned hostile and his evidence does not reveal anything material for consideration. 9. About the formal witnesses we have P.W.2, Srikanta Patra, who was a witness to the holding of inquest by the police and he signed in the inquest report (Exhibit 3). P.W.3, Bhaskar Hazari, who according to the prosecution was a witness to the incident turned hostile and his evidence does not reveal anything material for consideration. P.W.7, Dhananram Murmu, is a constable who carried the dead body to the morgue for Post Mortem examination. P.W.8, Durga Das is a witness to the seizure of gangi and lungi of the deceased under a seizure list (Exhibit 5/1). 10. P.W.9, Dr. J.N. Dey who held Post Mortem examination on the body of the deceased found the following injuries:- "(1) An abrasion 1” x ½” over lateral aspect of the lower third of left forearm. (2) Bruise over medical aspect of the right elbow. On dissection, fair amount of extra vasated and clotted liquid blood was seen to have infiltrated in and around bruise. (3) An abrasion 4" x 2" over the mid part of both glutial region. (4) An abrasion 4" x 2" over the right side of scrotum. (5) An abrasion 4” x 2½” over the left side of the scrotum. On further dissection, if found the following additional injuries. (1) Fair amount of extra clotted and liquid blood was seen to have infiltrated the tissues of both the testes and scrotum. (2) Fair amount of extra vasated clotted and liquid blood was seen to have infiltrated into tissues of posterior part of both parietal bones covering an area of 3½ x 2½". (3) Subdural clotted and liquid blood was seen to have infiltrated into tissues of the posterior part of the cerebral hamesphere. (4) Fracture of all ribs on right side. Fair amount of extra vasated clotted and liquid blood was seen to have infiltrated into the tissues in and around the fractures." 11. The doctor says that the death in his opinion was due to the effects of the above injuries which were ante-mortem and homicidal in nature. 12. P.W.10, Chowdhury Mizanur Rahaman is the last I.O. of the case who submitted charge-sheet against the eleven accused persons. P.W.11, Sekhar Ch. Dey is the I.O. of the case who also held inquest on the body of the deceased Kamala Kanta Patra and found the testees of the deceased swollen and the skin of the testee reddish. 13. 12. P.W.10, Chowdhury Mizanur Rahaman is the last I.O. of the case who submitted charge-sheet against the eleven accused persons. P.W.11, Sekhar Ch. Dey is the I.O. of the case who also held inquest on the body of the deceased Kamala Kanta Patra and found the testees of the deceased swollen and the skin of the testee reddish. 13. P.W.12, Dr. Dhrubajyoti Patra examined P.W.1 and found swelling and tenderness on left knee joint in the lateral side. He found further small abrasion in left middle finger. According to the doctor, the patient told him that Subhas Das, Baren Bauri and others assaulted him by lathi. 14. That Kamala Kanta Patra died at the spot near the house of P.W.1 at 10 a.m. on 20th November, 1989 is not disputed. P.W.1 says that having returned from market at 9.30 a.m./10.00 a.m. he found all the accused persons throwing brickbats towards his house and uttering filthy Words. At the sight of him, Baren Bauri caught hold of him and Subhas Das assaulted him on his back by lathi and other accused persons also assaulted him. He fell down on the ground. When Kamala Kanta Patra same to his rescue, Binod, Subhas, Gunamoy, Bela, Sankar, Sandhya, Baren, Sibu, Madan and Sambhu started assaulting Kamala Kanta Patra by felling him on the ground. Kamala Kanta Patra became senseless. On hearing hue and cry Nemai Patra (P.W.4), Asit Bardhan (P.W.5), Bhaskar Hazari (P.W.3) and Subhas Patra rushed to the place of occurrence when all the accused persons fled away. Then he went to the police station and lodged the F.I.R. He sustained injuries on the knee of his left leg and fingers of his left hand. He says that he narrated the incident to the doctor of Krishnagore Primary Health Centre. Cross-examination of this witness reveals the background of the incident which is this:- the daughter of P.W.6 Nanda Dulal Patra, who is the younger brother of P.W.1 married Ganesh Das following a love affairs. The appellant-Subhas Das and his family did not accept such marriage and refused to take P.W.6's daughter as their daughter-in-law. Because of the refusal of the accused Subhas Das to accept the marriage the parties became inimical to each other and the present incident is a sequel to this background. 15. Subhas Das is the husband of the accused Gita Das, while Gunamoy is the son of accused Binod. Because of the refusal of the accused Subhas Das to accept the marriage the parties became inimical to each other and the present incident is a sequel to this background. 15. Subhas Das is the husband of the accused Gita Das, while Gunamoy is the son of accused Binod. Binod is dead Subhas and Gunamoy are cousin to each other. Cross-examination of P.W.1 which was longish enough could not demolish the factual matrix of the prosecution case so far as the assault on P.W.1 and Kamala Kanta Patra is concerned. P.W.4 gives the following evidence:- "I was coming from field. I saw Subhas Das, Gunamoy Das, Bela Das, Binod Behari Das, Sankar Sur, Sandhya Sur, Baren Bauri, Sibu Bauri, Sambhu Bauri, Madan Bauri with brickbats, stones, tangi and other weapons in their hands. They abused filthy words in front of Nanda Patra's house. Some of them also were pelting brickbats and stones. They also threatened Nanda Patra and Sishir Patra to kill them. On coming of Sishir Patra at spot, the accused Baren Bauri caught hold him and Subhas Das struck him with lathi. Other persons also assaulted him. On hearing he hue and cry Kamal Patra came out from house. Then accused persons started assault on him with fists, blows and lathis. On hearing the said assault Kamala Kanta Patra became unconscious. Accused fled away. We removed injured Kamala Kanta Patra at the courtyard of his house. Having seen, Kamala Kanta Patra has already been expired. On the request of Sishir Patra I took him Onda. From Onda I came back". 16. P.W.5, Asit Bardhan, stated in his evidence as follows:- "The time of the incident was 9.00/9.30 a.m. on 20.11.89 at that time, I was in my house. On hearing a hue and cry I came out of my house and saw that the accused persons viz. Subhas Das, Gunamoy Das, Bela Das, Binod Behari Das, Sankar Sur, Sandhya Sur, Baren Bauri, Sibu Bauri, Sambhu Bauri, Madan Bauri were uttering filthy words in front of the house of Nanda Patra and they were also pelting brickbats and stones towards the house of Sishir Patra. The accused persons had brick, stones and lathi and other weapons in their hands. At that time, while Sishir Patra reached the spot, the accused persons started assaulting him. The accused persons had brick, stones and lathi and other weapons in their hands. At that time, while Sishir Patra reached the spot, the accused persons started assaulting him. At that time, Kamal Patra came out form his house and requested the accused persons to be calm and quiet. But the accused persons did not pay heed to his words and started assaulting him. After being assaulted, Sishir Patra fell down on the ground being severely injured. Kamal Patra also in the trembling condition fell down on the ground being severely injured and became still. Thereafter, the accused persons fled away from the place of occurrence. All the accused persons, as named by me, excepting one, who is now dead, are present in Court today (identifies all the accused persons on dock). Subsequently, we removed Kamal Patra to his house and made him lie in his courtyard but at that time we watched that Kamal had already expired." 17. P.W.6, Nanda Dulal Patra, deposed in his evidence as follows:- "The accused persons, viz. Subhas Das, Gunamoy Das, Bela Das, Binod Behari Das, Sankar Sur, Sandhya Sur, Baren Bauri, Sibu Bauri, Sambhu Bauri, Madan Bauri assembled in front of my house armed with brick, stones, lathis and other weapons started pelting stones and brickbats towards my house and were using filthy language in my name and the names of the members of my house. At that time, my elder brother Sishir Patra reached in front of my house. The accused persons assaulted him in front of my house. At that time, my cousin brother, Kamal Patra came out of his house and tried to pacify the accused persons. At this, the accused persons started physical assaults upon Kamal Patra, he fell down on the ground but he was being still assaulted by fists, blows and kicks by the accused persons throughout his body on different parts while he was lying on the ground. At that time, there were hue and cry over the incident by us and the accused persons fled away from the place of occurrence. Kamal Patra being injured by the assaults of the accused persons was trembling and ultimately his body became still. Thereafter, we removed the body of Kamal Patra to the courtyard of his house where he was found dead. Kamal Patra being injured by the assaults of the accused persons was trembling and ultimately his body became still. Thereafter, we removed the body of Kamal Patra to the courtyard of his house where he was found dead. Due to the assaults by the accused persons, my elder brother Sishir Patra received severe injuries on different parts of his body. Nemai Patra took Sishir Patra to Onda P.S. on a bicycle." 18. Thus, we find from the evidence of P.W.1 and P.W.6 that the genesis of the incident is the marriage of P.W.6's daughter with Ganesh, son of Subhas Das, accused. It was the deceased, who according to P.W.6, took the initiative in the marriage. Evidence of P.W.1, P.W.4, P.W.5 and P.W.6, if read closely, would reveal that before P.W.1 returned from Kalisen market the accused persons being armed with different weapons had already assembled in front of the house of P.W.1 and as soon as P.W.1 reached his house Baren and Subhas assaulted him, and when Kamala Kanta Patra came to his rescue all the accused persons encircled Kamala Kanta, fell him on the ground, and assaulted him and thereby caused his death. According to P.W.1 on hearing hue and cry of Kamala Kanta, P.W.3, P.W.4, P.W.5, P.W.6 and others reached the place. 19. The first point that has been raised by the learned Advocate for the appellants is that the witness are inconsistent as to the question whether Sishir (P.W.1) was first assaulted or Kamala Kanta, the deceased/was first assaulted. According to P.W.1, he was first assaulted and then when Kamala Kanta came the accused persons encircled him and caused his death by assaulting him at random. P.W.4 is said to had stated before the I.O. that after Kamala Kanta became senseless being assaulted by the accused persons P.W.1 came and then he was assaulted by the accused persons I.O. also says that P.W.4 and P.W.5 stated to him that in course of assault on Kamala Kanta Sishir came and he was then also assaulted by the accused persons. We do not find any such contradiction between the statement on oath of P.W.4 and P.W.5 and their statements to the I.O. materially affects the prosecution case. Occurrence took place in front of the house of P.W.1. Evidence of I.O. discloses that P.W.4 stated to the I.O. that when the accused persons were pelting stones Sishir was not present. We do not find any such contradiction between the statement on oath of P.W.4 and P.W.5 and their statements to the I.O. materially affects the prosecution case. Occurrence took place in front of the house of P.W.1. Evidence of I.O. discloses that P.W.4 stated to the I.O. that when the accused persons were pelting stones Sishir was not present. This statement of P.W.4 before the I.O. is consistent with the evidence of P.W.1. When P.W.1 came he was assaulted by Subhas and Baren. That Kamala Kanta and P.W.1 sustained injury in connection with one and the selfsame incident cannot be contradicted. Presence of P.W.1 and that of Kamala Kanta at the scene of the occurrence is a fact clearly established. Both were assaulted by the accused persons at the same time and the same place. In these circumstances, whether Kamala Kanta was assaulted first or Sishir was assaulted first leads us nowhere. 20. It has been argued that at the time of the incident Kamala Kanta had his wife and son but his son and wife have not been examined. Such examination would have been necessary if it was established through evidence that they were present at the place of occurrence. P.W.4, P.W.5 and P.W.6 rushed to the place of occurrence immediately after the accused persons started assaulting Kamala Kanta and fell him on the ground. Presence of these three witnesses at the place of occurrence as has been testified by them could not be demolished by any amount of cross-examination. Therefore, non-examination of wife or son of Kamala Kanta is of no consequence. 21. It has been argued that since Kamala Kanta's house is on a different pathway, it was impossible for him to see as to what was happening in front of the house of P.W.1. The argument is not sustainable because of the fact that the evidence does not show that Kamala Kanta's house and the house of P.W.1 are at different places. It appears from the evidence of P.W.1 that in front of his house a village pathway is stretched from east to west leading to Kalisen market and Kamala Kanta's house is situated upon another pathway. This evidence cannot be interpreted to mean that Kamala Kanta did not come to the place of occurrence. It appears from the evidence of P.W.1 that in front of his house a village pathway is stretched from east to west leading to Kalisen market and Kamala Kanta's house is situated upon another pathway. This evidence cannot be interpreted to mean that Kamala Kanta did not come to the place of occurrence. The houses of Kamala Kanta and P.W.1 may be on two pathways but it is not in evidence that the houses of Kamala Kanta and P.W.1 are situate at places far off from each other. Death of Kamala Kanta at the hands of the accused persons in front of the house of the P.W.1, being a fact, it is ridiculous to enquire as to where the house of Kamala Kanta is situated. It appears from the sketch map of the I.O. that Kamala Kanta was assaulted just in front of the house of P.W.1 which is on the village pathway leading from east to west which. The khamar of Kamala Kanta is to the south of the village pathway. Kamala Kanta's house is to the south of the place of occurrence. 22. An argument has been advanced that the death of Kamala Kanta was an accidental one and it has been mischievously linked up with the alleged incident. It has been argued that having regard to the nature of injuries sustained by the deceased it could be an accidental fall and does not amount to culpable homicide. Such a defence is absolutely without any evidence and probability. The doctor has clearly stated that the death was as a result of the injuries and of squeezing testees which were ante mortem and homicidal in nature. The doctor further says that all the injuries described in his Post Mortem report were caused at a time and the question of gap of time or intervention of time does not arise. Not a single witness was suggested that Kamala Kanta fell from the roof of his house and died. Rather we find from evidence of P.W.6 that at the initiative of Kamala Kanta Patra the marriage between the daughter of P.W.6 and son of the accused, Subhas Das was solemnized, and Kamala Kanta obviously became the target of the appellants. 23. It was argued that the I.O. examined all the partition witnesses and no independent witness has been examined. Rather we find from evidence of P.W.6 that at the initiative of Kamala Kanta Patra the marriage between the daughter of P.W.6 and son of the accused, Subhas Das was solemnized, and Kamala Kanta obviously became the target of the appellants. 23. It was argued that the I.O. examined all the partition witnesses and no independent witness has been examined. In an incident like this when P.W.4, P.W.5 and P.W.6 saw Kamala Kanta being assaulted by the accused persons it was but natural that they would rush to the place of occurrence to save Kamala Kanta. The mere fact that P.W.5 is a relation of the deceased is no ground to say that he or for that matter the other witnesses namely, P.W.1, P.W.4 and P.W.6 would be telling a lie. It has been argued that the witnesses have given exaggerated version by saying that the accused persons were armed with bhojali, tangi and hansua, where in fact, no injury was found to have been caused by means of bhojali, tangi and hansua. It is not the evidence of P.W.1, P.W.4, P.W.5 and P.W.6 that either P.W.1 or Kamala Kanta was assaulted by bhojali, tangi and hansua. Therefore, whether the accused persons were armed with bhojali, tangi and hansua or not is not a vital one. 24. It was argued by the learned Defence Counsel that Kamala Kanta's dead body was found in his courtyard and as such his death at the place of occurrence could be under challenge. This argument is not based on evidence P.W.5 says "subsequently we removed Kamala Kanta Patra to his house and made him lie in his courtyard but at that time we noticed that Kamala Kanta had already expired". Evidence of P.W.1, P.W.4, P.W.5 and P.W.6 unmistakenably reveal that assault on Kamala Kanta took place in front of the house of P.W.1 and when P.W.5 says that Kamala Kanta was removed to his courtyard, it means that Kamala Kanta's house and house of P.W.1 are not situated at two complete different places. 25. Evidence of P.W.1, P.W.4, P.W.5 and P.W.6 unmistakenably reveal that assault on Kamala Kanta took place in front of the house of P.W.1 and when P.W.5 says that Kamala Kanta was removed to his courtyard, it means that Kamala Kanta's house and house of P.W.1 are not situated at two complete different places. 25. It has been argued by the learned Advocate for the appellants that when evidence of the witnesses is to the effect that a large number of people belonging to the group of the accused persons allegedly came to the place of occurrence and Kamala Kanta was allegedly assaulted by fists and blows and kicks it could not be said that the accused persons had intention to cause death. And furthermore, it could not be asserted as to exactly by whose kicks and blows and fists Kamala Kanta sustained injuries and succumbed thereto. It is further argued that some ladies have also been implicated in the case. There is no evidence that the ladies also participated in the act of assault. We find merit in the submission. In fact the assailant Binod, whose name transpired in evidence, is dead. We do not find any sufficient involvement of the appellants Smt. Bela Das and Smt. Sandhya Sur. 26. It is further argued that the appellants, Sambhu Bauri and Sibu Bauri were minors at the time of the incident. The basis of the submission is their statements in course of the examination under Section 313 of Cr. P. C. Sambhu Bauri in his examination under Section 313 Cr. P. C. stated that he was 22 years old, while the appellant Sibu Bauri gave his evidence at 25 years. They were examined on 4th January, 1998. It is thus, submitted that Sambhu Bauri and Sibu Bauri were at the material point of time 14 years and 17 years old respectively. It is true that the alleged minority of Sambhu and Sibu has been raised for the first time during the trial and it does not appear that it was ever raised at any point of time during the trial of the case. Yet at the same time, we cannot be impervious to the submission so made. 27. In the circumstances, we propose to direct the learned C.J.M., Bankura to make an enquiry as to whether Sambhu Bauri and Sibu Bauri were minor on the date of the incident. 28. Yet at the same time, we cannot be impervious to the submission so made. 27. In the circumstances, we propose to direct the learned C.J.M., Bankura to make an enquiry as to whether Sambhu Bauri and Sibu Bauri were minor on the date of the incident. 28. Since we do not find sufficient evidence against the appellants Smt. Sandhya Sur and Smt. Bela Das, we are satisfied that they may be found not guilty of the offences and shall be acquitted of the charges. 29. It was an attack upon Kamala Kanta and Sishir by a group of people. So far as common object of causing assault on P.W.1 and Kamala Kanta is concerned, it was present with all of them, but when the question is whether the appellants had intention to cause murder of Kamala Kanta, we are constraint to hold that evidence and circumstances of the case do not suggest that the case could be covered under Section 302 of I.PC. Furthermore, of the large number of appellants it is difficult to say as to by which appellants Kamala Kanta sustained injuries. In such circumstances, the charge can be altered to Section 304 (Part II) read with Section 149 of the I.P.C. 30. Thus, the appeal is allowed in part. 31. The judgment and order of the learned Additional Sessions Judge, 2nd Court, Bankura is modified as follows:- Accordingly while we maintain the conviction and sentence of the appellants, namely, Subhas Das, Gunamoy Das, Sankar Sur, Baren Bauri, Sambhu Bauri, Sibu Bauri and Madan Bauri under Section 323 read with Section 149 I.P.C. and under Section 148 of the I.P.C., we alter the conviction of the appellants to Section 304 (Part II) read with Section 149 of I.P.C. 32. Appellants Subhas Das, Gunamoy Das, Sankar Sur, Baren Bauri, Sambhu Bauri and Madan Bauri are convicted under Section 304 (Part II) read with Section 149 of I.P.C. and are sentenced to suffer rigorous imprisonment for six years on account of the said charge and to pay a fine of Rs. 1,000/- in default to suffer further R.I. for six months. 33. Learned C.J.M., Bankura is directed to hold an enquiry and submit report within a period of three months from this date as to whether accused Sambhu Bauri and Sibu Bauri were minor on the date of the incident and what their respective age was on that date. 1,000/- in default to suffer further R.I. for six months. 33. Learned C.J.M., Bankura is directed to hold an enquiry and submit report within a period of three months from this date as to whether accused Sambhu Bauri and Sibu Bauri were minor on the date of the incident and what their respective age was on that date. The record of this appeal shall be put up three months hence for the purpose of further order with respect to the said two appellants who shall continue to be on bail. 34. Appellant Bela Das and Sandhya Sur being not found guilty of the charges are acquitted under Section 235 of Cr.P.C. 35. The appellants sentenced as above shall surrender before the learned Trial Court to serve out the sentence failing which the learned Trial Court will take appropriate steps for their apprehension so as to have the sentence executed in accordance with law. 36. All the sentences will run concurrently. 37. Let a copy of this judgment along with L.C.R. be sent to the learned Trial Court for information and necessary action and also a copy of the order shall be sent to the learned C.J.M., Bankura for information and necessary action. 38. The learned Registrar General of this Court is directed to communicate forthwith operative part of the judgment to the concerned learned Trial Court under Rule 8 Chapter -XI of the Appellate Side Rules of this Court for information and necessary action. Urgent xerox certified copy of this judgment, if applied for, shall be given to the learned Advocates for the parties expeditiously. Gupta, J. : I agree.