JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against the judgment and order dated February 9, 1987 passed by the Learned Additional Sessions Judge, 6th Court, Alipore in Sessions Trial No. 1(7)86 corresponding to Sessions Case No. 28(2)86 convicting the appellants for commission of offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 5 years each and to pay a fine of Rs.1000/- each in default to suffer further rigorous imprisonment for six months has been assailed. 2. Prosecution case as alleged against the appellants and co-accused Muneswari Ali is to the effect that on 7.8.1984 at about 2.30/3 P.M. when the complainant Motilal Das and other male members were away from their house, appellant no.2 Iswar Chowdhury came to their house and abused his wife and sister-in-law. Later on appellant no.1, Samar Chowdhury, the father of Iswar, came to the house and took the latter away. On the next day i.e. 8.8.1984 at about 8.30 A.M. when the complainant and his father and brothers were discussing the incident of the previous day the appellants along with Muneswari Debi came to the house and started hurling abuses at them and as they protested the appellants left their house. Within half an hour the appellants again came to the house and hurled two bombs at the tiled roof of the complainant and attacked them with lathi and bhalla and started mercilessly assaulting their father i.e. Lochan Das and his brother Hira causing bleeding injuries. The appellants committed mischief by breaking the tiles of the roof of their house and after they raised hue and cry the appellants fled away. As a result of such injury, Hira died in hospital. Defacto-complainant Motilal Das lodged first information report at local P.S. Case no.4 dated 8.8.1984 under Sections 448/324/325/ 427/34 of IPC and under Sections 3 and 4 of Explosive Substance Act. Upon the death of Hira, charge sheet was filed under Sections 448/427/323/304 read with Section 34 of the IPC. The case was committed to the Court of Sessions and transferred to the Court of the Learned Additional Sessions Judge for trial. Charge was framed against the accused persons under Section 302/149/148 of I.P.C. and the same was read over and explained to them. They pleaded not guilty and claimed to be tried. 3. The case was committed to the Court of Sessions and transferred to the Court of the Learned Additional Sessions Judge for trial. Charge was framed against the accused persons under Section 302/149/148 of I.P.C. and the same was read over and explained to them. They pleaded not guilty and claimed to be tried. 3. In the course of trial, the prosecution examined as many as 11 witnesses to establish its case. The defence of the appellants was one of innocence and false implication. It is their specific defence that Samar Chowdhury, the appellant no. 1, was the landlord and there was a landlord-tenant dispute and as a result the appellants have been falsely implicated in the instant case. It was further pleaded that Hira had suffered an accidental injury while he was cutting grass beside the railway track. In conclusion of trial, the Trial Court convicted and sentenced the appellants, as aforesaid. Muneswari Debi, however, was acquitted of the charges. 4. Mr. Chakraborty, learned Amicus Curiae submitted that there is no evidence on record that appellants shared common intention to cause death of the victim. There is no overt act attributed to them. It is further submitted that all the witnesses are the family members of the victim and are interested witnesses who were inimical to the appellants. Hence, appellants ought not to be convicted on the basis of the evidence. He prayed for acquittal. 5. On the other hand, Mr. Gupta, the Learned Counsel for the State submitted that the evidence of the prosecution witnesses are reliable and convincing. They are unshaken in cross-examination. P.W4 is an injured eyewitness and has clearly implicated all the appellants in the assault of his son, Hira which resulted in his death. He, accordingly, prayed for dismissal of the appeal. 6. P.W. 1 to 5 are the eyewitnesses in the instant case. 7. P.W.1 is the sister of the victim. She deposed on the day of the incident the appellant no. 1 and his wife came to their house and abused them. Then they left their house and, thereafter, all the appellants came to their house. Wife of the appellant no.1 handed over a spear to him. Appellant no. 4 gave a bomb to appellant no. 2. She and elder brother's wife were present in the house. Appellant no.2 hurled the bomb at the roof of the house. The roof was damaged. Then they left their house and, thereafter, all the appellants came to their house. Wife of the appellant no.1 handed over a spear to him. Appellant no. 4 gave a bomb to appellant no. 2. She and elder brother's wife were present in the house. Appellant no.2 hurled the bomb at the roof of the house. The roof was damaged. Appellant no.2 caught hold of Hira and pressed him physically against the wall. Samar gave him a blow by a spear on the left side of his breast. Hira fell down being so struck by Samar. Hira was taken to the hospital by a man in their locality in a rickshaw. Hira, subsequently, died in the hospital. 8. In cross-examination, she stated that she is the only sister of her three brothers namely Hiralal, Motilal and Harilal. They used to stay together in one house. Brother Motilal had left the house for unknown destination. She deposed that Samar was their landlord and litigations were going on between them. Her father and brothers left the house at morning 5 A.M. and returned at noon after taking their meals. Besides herself and her sister-in-law there was no one present in the house. They took shelter in a nearby house being frightened by the hurling of bombs. 9. P.W. 2 is the wife of the elder brother of Harilal Das. She deposed that Motilal Das, the defecto-complainant is the brother of her husband. Her husband is no longer alive as he was murdered about two and half years ago. On 7.8.84 appellant no.2 Iswar came to their house, abused them and left. On the next day, the appellants came to their house and again abused them. Local people drove them away. At about 12 noon to 1 P.M. all the appellants came to their house. Hyeder handed over a bomb to Iswar. Iswar threw that bomb on the roof of their house and, thereafter Hyeder threw another bomb at their house. Pradip and Iswar caught hold of Hira, and wife of Samar handed over a bhalla to Samar and Samar struck Hira after pressing him forcefully against the wall of the room of Jagannath. He was struck on the breast. Blood came out from the person of Hira. He was taken to B.N. Basu hospital by a rickshaw puller. The hospital authorities refused to admit the injured person. He was struck on the breast. Blood came out from the person of Hira. He was taken to B.N. Basu hospital by a rickshaw puller. The hospital authorities refused to admit the injured person. Thereafter, he was taken to R.G. Kar Hospital. He was alive for 7 days and then succumbed to his injuries. One or two months after the incident Motilal left the house and his whereabouts are not known till date. 10. In cross-examination, she stated that litigations were going on between themselves and appellant Samar who is their landlord. 11. P.W.3 is an independent eyewitness, who resides at a distance of 20 steps from the house of the victim. He stated that he knew Lochan. Lochan had four sons. Two and a half years ago, Hira the son of Lochan was murdered by spear on the day of occurrence at about 9/9.30 A.M. At that time he was going to cut bamboos after having tea. He heard sounds of bursting of bombs. Iswar, son of Samar, hurled the bomb. Deceased Hira came out of the house at that time. Lochan shouted for help. Samar, Iswar and Pradip started assaulting Hira. They attacked the deceased and pressed him physically against the wall. Then, appellant Samar asked the other appellant to bring bhalla with the intention to assault Hira. The wife of Samar brought the spear and he assaulted Hira with that bhalla causing bleeding injury. Hira died lateron. 12. In cross-examination, he stated Hira ran away from the place along the Satya Dayal Road after being struck with the bhalla. 13. P.W. 4 Lochan Das is an injured eyewitness. He deposed that he had four sons, namely Hari Das, Hira Das and Motilal Das. Hira Das had been murdered. Motilal Das had left for an unknown destination about two and half years ago. On 7th August, 1984 appellant Iswar came in a drunken state and abused the female inmates of the house. On the next day, there was an altercation between the female inmates of the house of the appellant Samar. At 10 A.M. Iswar came with a bomb and hurled the same at their house. He was in the house. At that time the bomb was hurled. Hira tried to escape from the house. Iswar also hurled another bomb at Hira while he was trying to leave the house. Thereafter, Samar, Iswar and Pradip surrounded Hira. At 10 A.M. Iswar came with a bomb and hurled the same at their house. He was in the house. At that time the bomb was hurled. Hira tried to escape from the house. Iswar also hurled another bomb at Hira while he was trying to leave the house. Thereafter, Samar, Iswar and Pradip surrounded Hira. The wife of Samar gave a bhalla to him. The appellants pressed Hira against the wall of a nearby room. Samar dealt Hira with a blow by that bhalla on the left side of his chest. Blood came out profusely. Hira sustained injuries at 4/5 places of his body. After assaulting Hira the appellants fled from the place of occurrence. One rickshaw puller took the injured son to the local P.S. He was taken to B.N. Bose Hospital for treatment and, thereafter, R.G. Kar Hospital. After six days his son expired. 14. In cross-examination, he stated that he saw the incident from the house. He stated that they go to the bank of the railway track to cut grass. His eldest son lives separately on Idga road. 15. P.W. 5 is another independent eyewitness of the incident. He resided in the house of Munni Bibi which is situated near the house of the appellants. He stated that on the day of occurrence he was having meal at his house. At that time he heard a sound of blasting of a bomb. He came out of the house. He saw Iswar hurling a bomb at the house of Hira. Hira came out of the house and was trying to run away from his house. Appellants Prodip, Iswar and his father Samar caught hold of Hira. They pressed Hira firmly against the wall of a nearby house. Samar asked for a bhalla from his wife and his wife supplied him with the same. Hira was assaulted by Samar with a bhalla and, thereafter they left the spot. Hira fell down and, thereafter he was taken to the local P.S. by a rickshaw puller. 16. In cross-examination, he stated that injured Hira was taken by a rickshaw puller to the police station. He stated that he worked in the Kakinara Paper Mill and the said factory was closed at that time when the incident took place. He came to the road and saw the incident. He saw many people of the locality present there. 16. In cross-examination, he stated that injured Hira was taken by a rickshaw puller to the police station. He stated that he worked in the Kakinara Paper Mill and the said factory was closed at that time when the incident took place. He came to the road and saw the incident. He saw many people of the locality present there. At the time of the incident Lochan was not in his house. 17. P.W. 6 is also another independent witness who resides on the opposite side of the house of the appellants. He stated that on the day of occurrence he returned home after having tea at a nearby tea stall. He heard sounds of bursting of bombs. He came out and saw that both the parties were exchanging lathi blows. Iswar and Pradip pressed Hira against a wall of a house after beating him. Samar assaulted Hira with a bhalla. He fell down and was carried by rickshaw to the local police station. 18. In cross-examination, he stated that in the morning at about 6 A.M. to 9 A.M. he came out of his house and had tea at a tea stall which is situated by the bazar. 19. P.W. 7 was declared hostile. He failed to identify the accused persons. He further stated that he had not seen any incident with his own eyes. 20. P.W. 8 examined Hira Das and Lochan Das and found the following injuries on Hira: “1. One penetrating injury 1½”× ½ over precordium i.e. anterior chest over the heart. The general condition of the patient was found to be low. Pulse 100 per minute low volume. The patient got admitted to Male Surgical Ward. The details can be had from the ward. The injury was found to be fresh.” He found the following injuries on Lochan: “1. One lacerated injury on the forehead (right side). 1”× ½”× muscle deep. The general condition of the patient was found to be fair at that time. Pulse rate was 84 per minutes. The patient was attended and advised.” 21. The injuries on Hira may have been caused by a spear. The injuries may have caused death. As per the statement of patient party he was assaulted by Samar and Iswar. 22. P.W. 9 is the autopsy surgeon. Pulse rate was 84 per minutes. The patient was attended and advised.” 21. The injuries on Hira may have been caused by a spear. The injuries may have caused death. As per the statement of patient party he was assaulted by Samar and Iswar. 22. P.W. 9 is the autopsy surgeon. During post mortem he found the following injuries on the person of the deceased: “One incised penetrating wound over front of the left chest measuring 1” × ?” on thoracic cavity more or less elliptical in shape placed a little obliquely 2”left side of the middle line and land 10” right of the left nipple. 4½” straight below the left sterno postal joint having clean cut everted and well defined margins and the both ends were pointed. The incised penetrating wound then entered into the thoracic cavity through 3rd and 4th intercostal space by piercing the intercostal muscle and the parital penetonium measuring 1½” × ½” and then pulse a downward and to the left cleanly cut the upper lobe of the left lung along with its pleura measuring 1”× 1” 3¼” below the apex and terminated there. One pint of blood was found in the thoracic cavity. The direction of the track was a little downward and to the left. One surgical drainage was found between 6th and 7th intercostal space stitched up by three surgical sutures. E.V.C. was found in and around the track of the incised penetrating wound.” 23. Death was due to the effect of the above injury antemortem and homicidal in nature. The injury was sufficient to cause death. 24. P.W. 10 was an S.I. of Police attached to Chitpur P.S. He held inquest over the dead body of the victim. 25. P.W. 11 was the investigating officer of the instant case. He proved the formal F.I.R. (Exht.1). He seized articles from the P.O. under a seizure list. The seizure list is in the handwriting of S.I., A.K. Biswas (Exht.2). He prepared sketch map (Exht.3). He arrested the accused persons. On 15.8.1984 he got an information that the victim had died. He made a prayer for adding Section 304 of IPC. He received injury report of Lochan Das and deceased Hira Das. On 15.8.1984 he sent seized alamats to the Explosive Expert for his opinion. He received post mortem report. On 12.1.1984 he received inquest report and submitted charge sheet. 26. He made a prayer for adding Section 304 of IPC. He received injury report of Lochan Das and deceased Hira Das. On 15.8.1984 he sent seized alamats to the Explosive Expert for his opinion. He received post mortem report. On 12.1.1984 he received inquest report and submitted charge sheet. 26. In cross-examination, he stated that he did not seize any blood stained earth as no such blood stained earth was found. 27. From the aforesaid evidence, it appears that P.W. 1 to P.W 6 have claimed to have seen the incident. It is their consistent version that in the afternoon of 8.8.1984 the appellants along with wife of appellant no. 1 Samar attacked the house of P.W. 4, Lochan Das. Appellants threw bombs on the roof of the house and, thereafter when the victim Hira came out, the appellant nos. 2 and 3 pressed him against a wall of a nearby house and appellant no.1 thrust a spear through his left chest. He sustained bleeding injury and was shifted to hospital where subsequently he succumbed to such injury. The ocular versions of the aforesaid witnesses are supported by the medical evidence of P.W. 8 and 9. It is clear from their evidence that the victim had suffered a penetrating injury on his left chest which resulted in his death. 28. P.Ws. 3, 5 and 6 are the independent witnesses and they have supported the version of the relations of the victim, namely, P.Ws. 1, 2 and 4. It is, therefore, incorrect to say that there is no independent corroboration of the alleged incident of assault by the appellants on the victim resulting in his death. The plea of enmity due to pending civil litigations is of little significance as there is corroboration by independent witnesses, namely, P.Ws. 3 and 5 of the prosecution case of assault on the victim resulting in his death. 29. Coming to the specific roles of the appellants, I find that the lethal blow was dealt by appellant no. 1. There is also evidence on record that appellant nos. 2 and 3 pinned down the victim Hira while appellant no. 1 dealt the murderers blow. Hence, there is no escape from the conclusion that the appellant nos. 1 to 3 shared a common intention to cause the death of the victim. However, I do not find any overt act on the part of appellant no. 2 and 3 pinned down the victim Hira while appellant no. 1 dealt the murderers blow. Hence, there is no escape from the conclusion that the appellant nos. 1 to 3 shared a common intention to cause the death of the victim. However, I do not find any overt act on the part of appellant no. 4 in the assault on the victim. It may be true there is some evidence that appellant no.4 was present at the place of occurrence and had hurled a bomb. There is however no injury on the victim due to hurling of such bomb. Hence, I am of the opinion that it cannot be said with certainty that appellant no.4 had shared the common intention to kill the victim. Accordingly, I am inclined to acquit Hyeder Ali of the charge levelled against him. The conviction of appellant nos. 1 to 3, however, is upheld. 30. Coming to the issue of sentence, I find that the assault was caused by appellant no.1. Although, there is no doubt in my mind that appellant nos. 2 and 3 have actively participated in the murderers assault and pinned down the victim against the wall when appellant no.1 impelled him with a spare. I am of the opinion that as the said appellants were not the authors of the lethal injury the sentence imposed on them may be reduced to a certain extent. 31. Coming to the issue of sentence, I find that the murderers blow was dealt by appellant no.1 and the incident occurred three decades ago. None of the appellants have any criminal antecedent. Bearing in mind the role played by appellant nos. 2 and 3, I modify the sentence imposed upon them and direct that they shall suffer rigorous imprisonment for three years and pay a fine of Rs.1000/- in default shall suffer regorous imprisonment for six months respectively. 32. Sentence of appellant no.1 is, however, left undisturbed. 33. The bail bonds of appellant nos. 1 to 3 are cancelled and they are directed to surrender before the trial court forthwith and serve out the sentence imposed upon them in accordance with law. However, appellant no. 4 shall be discharged from his bail bond after six months from date in terms of section 437 Cr.P.C. 34. Period of detention suffered by the appellant nos. 1 to 3 are cancelled and they are directed to surrender before the trial court forthwith and serve out the sentence imposed upon them in accordance with law. However, appellant no. 4 shall be discharged from his bail bond after six months from date in terms of section 437 Cr.P.C. 34. Period of detention suffered by the appellant nos. 1, 2 and during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of 428 of the Code of Criminal Procedure. 35. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance and execution of the sentence. 36. The appeal is accordingly disposed of. 37. I record my appreciation for the able assistance rendered by Mr. Chakraborty, learned amicus curiae in disposing of the appeal. 38. Certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.