This appeal is filed under Section 374, Cr.P.C. challenging the judgment of conviction and sentence passed in S.C.222/09 which was pending on the file of III Additional Sessions Judge, Kalaburagi. During the pendency of this appeal, the 3rd appellant died and hence the appeal against him has abated.

2. These appellants were charges earlier for the offences punishable under Sections 323, 324, 341, 504, 302 read with 34 of IPC. Ultimately all of them have been found guilty of the offences punishable under Sections 323 and 304I read with Section 34, I.P.C. and have been sentenced to undergo RI for a period of 7 years each and to pay a fine of Rs.10,000/- each for the offence punishable under Section 304I, I.P.C. and to undergo SI for a period of 2 months each and to pay a fine of Rs.1,000/each for the offence punishable under Section 323, I.P.C. It is this judgment of conviction and sentence dated 3.8.2010 which is called in question in this appeal on various grounds as set out in the appeal memo.

3. Facts leading to the trial in S.C.222/09 are as follows:

a) CW1, Shabir Ahmed who is examined as PW3 was residing in the quarters of Alstom Colony in Shahbad, Kalaburagi District. The names of his two sons are Sajid Ahmed and Javed Ahmed.

b) At about 9.00 p.m. on the night of 7.12.2008, when said Shabir Ahmed was in his house, he heard some commotion. He got down from his house and saw that CW4-Sajid. his son and CW6-Shivaraj were talking to each other. At that time, the 1st accused along with 2nd accused and 3 others came there and picked up unnecessary quarrel with his son and assaulted him. In the meanwhile, Shabir Ahmed pacified them. When he was bringing back his son-Sajid Ahmed towards his house, both the accused accompanied by three more persons followed them and started assaulting his son-Sajid in front of his house and 1st accused fisted on his left eye and 2nd accused fisted on the back and caused injuries to his son Sajid.

c) On hearing the commotion, deceased Javed Ahmed, elder brother of CW4-Sajid came out of the house and intervened in the matter and asked the accused as to why they were assaulting his brother. Then 1st accused is stated to have abused Javed in a filthy language and asked him as to why he had come in their way. Saying so, 1st accused assaulted on the temporal region of Javed and 2nd accused fisted on his chest and all of them kicked on his stomach, as a result of which Javed sustained severe injuries and died at the spot. Thereafter all the accused ran away.

d) At midnight, Sajid Ahmed went to the police station and lodged a report FIR against accused nos.1 to 3 and other unknown persons on the basis of which a case came to be registered in Crime No.133/08. After concluding investigation, charge sheet was filed initially against accused nos.1 and 2 only and trial was held.

e) During the course of trial, an application was filed under Section 319, Cr.P.C. by the prosecution to implead3rd accused (deceased 3rd appellant herein). The application was allowed and Devindrappa was impleaded and material witnesses who had already been examined, were recalled and further examined and cross-examined.

f) After the conclusion of the evidence on behalf of the prosecution, all the accused came to be examined under Sect5ion 313, Cr.P.C. Their defence is one of total denial of the allegations levelled. They have made an attempt to probablise that Javed died because of falling from the stairs as he was coming from the first floor to the ground floor. After hearing arguments and appreciating the oral and documentary evidence on record, all the appellants have been found guilty for the offences punishable under Sections 323 and 304I read with Section 34, I.P.C. They have been acquitted of all other offences, i.e. Sections 324, 341, 504 and 302 read with Section34, I.P.C.

g) As many as 17 persons had been cited as witnesses in the charge sheet filed by Shahbad police. Out of them, 15 witnesses have been examined