JUDGMENT

T.S. Thakur, J.

1. Leave granted.

2. This appeal arises out of a judgment and order dated 15th July, 2010 passed by the High Court of judicature at Calcutta whereby Criminal Appeal No.641 of 2006 filed by the appellants has been dismissed and their conviction for the offence of culpable homicide not amounting to murder punishable under Section 304 Part I read with Section 34 IPC and sentence of rigorous imprisonment for a period of 10 years and fine upheld.

3. Facts giving rise to the commission of the offence by the appellants and their eventual conviction have been set out in the judgment under appeal which need not be recounted again especially because notice in this appeal was issued by us limited to the question of quantum of sentence to be awarded to the appellants. Suffice it to say that the unfortunate incident in which the deceased-Shyamalendu who was then working as Income Tax Inspector did no more than object to the commission of the nuisance in front of his house escalated into an uncalled for assault on him that culminated in his death. The prosecution case is that on 21st May, 2001 at about 7.00 p.m. Sudhir who was also a resident of the same locality was found committing nuisance in an open drain in front of the house of the deceased. The deceased appears to have objected to the nuisance leading to a verbal altercation between the two. On the following day at about 11.30 a.m. the appellant Bishnu Sarkar who happens to be the nephew of Sudhir came to the house of the deceased and threatened him. The deceased tried to reason with the appellant Bishnu Sarkar that he had done nothing wrong in protesting against the nuisance. At about 6.00 p.m. in the evening on the same day Madhav Sarkar, appellant No.2 and brother of Bishnu Sarkar is alleged to have called PW-1 Debabrato Mazumder son of the deceased and the complainant in the case to the slab near the drain and started beating him. The deceased who was leaving for the market intervened to save Debabrato Mazumder. Madhav Sarkar left the complainant and started beating the deceased with fists and blows. Appellant Bishnu Sarkar was allegedly standing nearby and instigating him. The complainant cried for help that attracted some local people who rushed to the place and took the deceased to the hospital in an injured condition where he succumbed to the injuries inflicted by Madhav Sarkar-appellant no.2 with the help of a brick.

4. The police filed a charge-sheet against the appellants after completing the investigation for commission of offences punishable under Section 304 read with Section 34 IPC. At the trial the prosecution examined as many as 13 witnesses including the Investigating Officer to prove the charge while the defence examined Parvat Kumar Paria besides placing reliance on certain documents. By its order dated 30th August, 2006 the Trial Court came to the conclusion that the deceased had died a homicidal death because of the injuries inflicted by Madhab Sarkar- appellant no.2 at the exhortation of appellant no.1-Bishnu Sarkar. Both of them were accordingly convicted under Section 304 Part I read with Section 34 IPC and sentenced to undergo rigorous imprisonment for ten years besides a fine of Rs.5,000/- each and in default to suffer further imprisonment for a period of one year. The High Court by the order impugned before us affirmed the said conviction and sentence while dismissing the appeal filed by the appellants.

5. Appearing for the appellants Mr. Ranjan Mukherjee submitted that the appellant-Bishnu Sarkar had not inflicted any injury on the deceased and that all that was alleged against him was that he exhorted appellant no.2- Madhab to assault the deceased and teach him a lesson. It was further submitted that the appellant-Bishnu Sarkar is more than 65 years of age and had already undergone 1½ years sentence in jail. He is also afflicted with various age related ailments that call for a lenient view in his case.

6. In so far as appellan