( 1 ) THIS appeal arises out of a proceeding which commenced in August, 1950 and which has, in the course of its progress from stage to stage, suffered certain vicissitudes.

( 2 ) THE proceeding had its origin in an incident which occurred on 11-8-1950 and involved the death of one Col. S. C. Mitra. In connection with that incident, the two appellants before us, Sunil Chandra Roy and Satyendra Chandra Boy, who are brothers, were sent up for trial along with a third brother named Amalesh Chandra Roy. Sunil was charged under Section 302, Penal Code for the murder of Col. Mitra and further charged under Section 323 of the same Code for causing simple hurt to Mrs. Sati Mitra, a daughter-in-law of the deceased Colonel. Satyendra was charged jointly with Amalesh under Section 323, I. P. C. for causing simple hurt to Nirmal Kumar Mitra, a son of Colonel Mitra. All the three were further charged under Section 447, I. P. C. for criminal trespass into premises No. 18, Bondel Road, Calcutta, the residence of Nirmal, where the incident was alleged to have taken place.

( 3 ) AFTER the usual preliminary enquiry, the three accused persons were committed for trial to the Court of Session and were in due course tried by an Additional Sessions Judge of Alipore with the aid of a jury. The jury unanimously found Sunil not guilty of the charges under Sections 302 and 323, I. P. C. and Amalesh not guilty of either of the two charges against him. By majority verdicts, however, they found Sunil guilty under Section 325, I. P. C. and Satyendra guilty under Section 323, I. P. C. and both guilty under Section 447, I. P. C.

( 4 ) THE learned Judge accepted the verdicts of conviction against Sunil and Satyendra and passed certain sentences on them. He also accepted the verdict of acquittal in respect of the charges under Sections 302 and 323. I. P. C. against Sunil. But he was unable to accept the verdict of acquittal in favour of Amalesh which he considered to be perverse and against the weight of the evidence and referred his case to this court under Section 307, Criminal P. C. with a recommendation that he should be convicted under both Section 323 and Section 447, I. P. C.

( 5 ) AGAINST their conviction and the sentences passed on them, Sunil and Satyendra preferred an appeal to this court, while the State moved for and obtained

a Rule for enhancement of the sentences. No appeal was preferred by the State against the acquittal of Sunil of the charges under Sections 302 and 323, I. P. C. The three matters, viz. , the reference made by the learned Judge, the appeal preferred by Sunil and Satyendra and the Rule obtained by the State were heard and disposed of together by Harries C. J. and Das J.

( 6 ) THE learned Judges rejected the reference against Amalesh and acquitted him in accordance with the verdict of the jury. They allowed the appeal of Sunil and Satyendra in the view that there had been serious mis-directions and directed them to be re-tried at the Criminal Sessions of the High Court on the charges of which they had been convicted. The Rule for enhancement of the sentences was discharged for the obvious reason that the convictions and the sentences having been set aside, no question of enhancing the sentences arose.

( 7 ) THE appellants were thereafter tried at the second Criminal Sessions of 1952 by J. P. Mitter J. with the aid of a Special Jury, Sunil on a charge under Section 325, I. P. C. for causing grievous hurt to Col. Mitra, Satyendra on a charge under Section 323, I. P. C. for causing simple hurt to Nirmal and both on separate charges under Section 447, I. P. C. for committing criminal trespass by entering into premises No. 18, Bondel Road with intent to intimidate, insult or annojr col. Mitra or Nirmal and to commit the offence of voluntarily causing hurt. The jury unanimously found the appellants guilty of all the charges against them. The learned Judge accepted the verdict and sentenced Sunil to rigorous i