JUDGMENT

K. JAYACHANDRA REDDY, J.:- The two appellants Phani Bhusan Das and Kanai Bag (original accused Nos. 1 and 13 respectively) were tried along with 15 others by the learned Assistant Sessions Judge, Midnapore under Sections 148, 323 149, 325 / 149 and 304, Part II / 149, I.P.C. The learned Assistant Sessions Judge acquitted one and convicted the other 16 persons including the appellants under Ss. 148, 323 / 149 and 304, Part II/149, I.P.C. Under the last count, the two appellants were sentenced to undergo R.I. for seven years and other accused were sentenced to lesser terms of imprisonments. All of them were also convicted under Sections 148 and 323 / 149, I.P.C. and sentenced to lesser terms of imprisonments. All the convicted accused preferred an appeal to the Sessions Court and the appeal was allowed. Aggrieved thereby the de facto complainant moved the High Court in revision and the High Court set aside the order of acquittal and directed the rehearing of the appeal on merits by the Sessions Court. After the remand the appeal was reheard and the then Additional Sessions Judge confirmed the conviction of the 16 accused persons under Sections 148 and 323/149, I.P.C., as awarded by the learned Assistant Sessions Judge. As regards the conviction under Section 304, Part II/149, I.P.C. the learned Additional Sessions Judge acquitted the other 1`4 persons and convicted the two appellants under Section 304, Part II, I.P.C. but reduced the sentence to five years. Against the said judgment the two appellants preferred a revision to the High Court. The High Court again set aside the judgment and remanded the case and directed the rehearing of the appeal so far it related to the two appellants with a further direction that the appeal on remand would be confined to the materials on record. The Sessions Court once again heard the matter in respect of the two appellants and dismissed the same. The two appellants again filed a revision and the High Court having considered the question elaborately whether Section 149, I.P.C. can be applied, ultimately convicted the two appellants under Section 304, Part II, I.P.C. and reduced the sentence to four years. The other convictions under Sections 148 and 323 / 149 were confirmed. Having considered the applicability of Section 149 in respect of the offence under Section 304, Part II, I.P.C. elaborately, the High Court ultimately convicted them under Sections 304, Part II/34, I.P.C. Hence the present appeal.

2. From the above facts it can be seen that the case has a chequered history. The same relates to an occurrence that took place at about 9.30 p.m. on 29th June, 1973. It is alleged that P.W. 2 Subodh went to the house of Sripati, his uncle where he was found to be talking with one Santi Shee at village Barisha. He asked Santi Shee as to why he gave `Bhangchi in his sisters marriage to which Santi declined to answer. Then A-1 came out and said that it was he who made the allegations against his sister. An altercation took place and P.W.2 was forcibly taken to his house by his family members. Thereafter according to the prosecution, A-1 along with other accused chased P.W.2 and damaged the house. On the next morning P.W. 2 went to Howrah to inform about the incident to his three brothers while Parbati, P.W. 17 and her father went to the Kolaghat Beat House to lodge a complaint. On 30th June, 1973 at about 11.30 p.m. all the brothers and Madan, P.W. 18, went to the house of A-1 to ask as to why he gave `Bhangchi. Then it is alleged that A-1 called other accused persons who came armed with lathis, shovels etc. formed into an unlawful assembly and attacked the house of P.W. 2. Being afraid, P.W. 18 came out of his house and he was assaulted by some of the accused. When Baidyanath, the deceased in the case, came out from the house, he was assaulted with rod by A-13 Kanai and he fell down. Then A-1 hit him on his head with an iron shovel. When the two other brothers Subodh and Charan came out, th