AJIT KUMAR SENGUPTA, J.

( 1 ) THIS appeal is directed against the conviction and sentence of the appellant under S. 304, Part 11 for which he was sentenced to rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for six months.

( 2 ) SHORTLY stated the prosecution is that on 30th Asar 1388 B. S. corresponding to I 5/07/1981 in the evening at about 7/ 7-30 p. m. the accused persons were sitting at a tea-stall belonging to P. W. 1 Kishori Mohan Dey situated by the side of Arindapara Road, Khairamari. At that time a quarrel was going on between Tajer and Khairul. In course of such quarrel the deceased Khalil came to the tea-stall from the field. As soon as Khalil came to the tea-stall, Khairul asked his associates, namely, the other accused persons of this case, to assault Khalil, Khalil started fleeing away, but he was chased by the accused persons and caught hold of. He was brought to the tea-stall and tied up with a rope and then the accused persons started assaulting him with deadly weapons. In course of such assault accused, Jamaruddin assaulted Khalil with a sword on his abdomen and as a result thereof he sustained a

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