Joymalya Bagchi, J.

The appeal is directed against Judgement and order dated 06.08.2008 convicting the appellant for commission of offence punishable under Section 304 (Part II) of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 5 years and to pay fine of Rs.1,000/-, in default, simple imprisonment for 6 months.

Prosecution case against the appellants is as follows :

On 06.03.2007 at about 10.30 a.m. one Anil Mishra (PW 2) lodged a written complaint against the appellants and other accused persons alleging that on 06.03.2007 at about 8.30 a.m. they brutally assaulted his brother Dilip Mishra (deceased), his wife Mina Mishra and his other brother Sunil Mishra by iron rod. Consequently his brother Dilip sustained serious injuries and was admitted at Purulia Sadar Hospital and thereafter transferred to higher medical centre, namely, K. M. Memorial Hospital at Chas. On the basis of the written complaint of Anil Mishra, first information report being Purulia P.S. case No. 23/2007 dated 06.03.1997 under Sections 147/148/149/326/304 of Indian Penal Code was registered for investigation. As the victim died, Section 304 of Indian Penal Code was added. On completion of investigation, charge sheet was filed against the appellants and seven other accused persons for commission of offences under sections 147/325/304/149 of the Indian Penal Code.

The case being a sessions triable one was committed to the Court of Sessions, Purulia and transferred to the Court of the Additional Sessions Judge, First Track Court no.2, Purulia for trial and disposal.

Charges were framed under Section 147/325/304/149 of the Indian Penal Code against the appellants and other accused persons namely Ashok Sharma, Manoj Sharma, Dilip Sharma, Santosh Sharma, Sabita Sharma, Rekha Sharma and Sushila Sharma. The appellants and other accused persons pleaded ‘not guilty’ and claimed to be tried.

In the course of trial prosecution examined as many as ten witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication.

It was the specific defence of the appellants that the defacto complainant and his witnesses had assaulted them and as a result co-accused Manoj Sharma and Ashok Sharma had sustained injuries and criminal case being GR no.137/2007 had been started against the defacto complainant and other witnesses of this case over such incident. The defence also exhibited the evidence of appellant no.1, Manoj Sharma and Ashok Sharma in the said case which they claimed to be a counter case to the present one. Such evidence was exhibited as Exhibit A, B and C. The said case had been started against J. Mishra (PW1), Anil Mishra (PW2), Sunil Mishra and Gourishankar Bhagat (PW3). It is pertinent to note that in the course of trial PW6 Dr. Dipak Kr. Basak was recalled by the trial Judge and examined as a Court witness. The defence also cross examined the said witness with regard to the injuries sustained by Ashok Sharma and Manoj Sharma. In conclusion of trial, the Trial Court by Judgement and order dated 06.08.2008 convicted the appellant numbers 1 and 2 for commission of offence punishable under section 304 (Part II) of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 5 years and to pay fine of Rs.1,000/-, in default, simple imprisonment for 6 months. By the self same Judgement and order, the other accused persons were acquitted of the charges levelled against them.

PW 1, Jaganath Mishra, is the father of the victim. He stated that he has a shop at Anjir Bagan beside one at Old Manbazar Road. On 06.03.2007 at about 8.30 a.m he was in his shop at Old Manbazar Road. He heard voices. At that time, Hriday Narayan Tewari (PW4) was with him. Following the voice, he went to the place from where the noise was coming and found appellant no.1 was complaining to his son Anil Mishra (P.W. 2) about the conduct of his grand son, Vishal Mishra (P.W. 7). His grand son