AKBAR KHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against a judgment and order dated 21st March 2009 by which the learned Additional Sessions Judge, Fast Track Court-1st Court, Baruipur in Sessions Trial Case No. 4(08)05 in connection with Sessions Case No. 26(12)04 ( State Vs. Akbar Khan and 4 others) convicted all the accused persons of an offence punishable under Sections 304 Part-1 and 326 of the Indian Penal Code read with section 34 thereof. The convicts were sentenced to simple imprisonment for 10 years each for the offence punishable under Section 304 Part Part-1 of the Indian Penal Code as also to pay fine of Rs. 5,000/- each and for the offence punishable under Section 326 I.P.C they were sentenced to 10 years of simple imprisonment as also to pay fine of Rs. 500/- each, in default to undergo further simple imprisonment for a period of 6 months and 2 months respectively. 50% of the fine, if realized, was directed to be made over to the legal heirs of the victim Prabhat Kr. Mitra. The convicts have come up in the appeal.

(2.) The facts and circumstance of the case briefly stated are as follows: On 7th February 2004 at about 11 a.m. the accused amongst others were playing cricket in the playground of the club known as Milan Sangha. The playground was in the vicinity of a School, a Post Office and a Library. Noise generated naturally affected the smooth functioning of the School, Post Office and Library. The elders of the neighborhood protested. The unruly players resented the protest and refused to budge. An altercation followed. The librarian Shyamsundar (P.W.4) was sought to be assaulted. Naturally the other elders came to his rescue whereupon some players fled away but the accused persons became violent and started mercilessly assaulting, in consequence whereof Prabhat Kr. Mitra, aged about 55 years was seriously injured who eventually passed into perpetual senselessness and died on 15th February 2004. His brothers namely Ramdas Mitra and Pradip Mitra were also seriously injured. The injury reports are exts. 2, 3 and 4. The autopsy surgeon ( P.W.9) found the following injuries on the dead body of Prabhat Kr. Mitra:-

(3.) His first submission was that all the 5 accused persons cannot be said to have shared common intention to commit the crime punishable under Section 304 of the Indian Penal Code. According to him the accused Kasem was the key man. The rest of the accused persons were present but did not take any active role.