The main legal point established in the judgment is the interpretation and application of the Indian Penal Code sections related to assault and culpable homicide, along with the consideration of compensation under Section 357 of the Code of Criminal Procedure.

JUDGMENT :

BIBEK CHAUDHURI, J.

1. The appellants have assailed the judgment and order of conviction passed in Sessions Trial No. 65 of 2013 arising out of Sessions Case No. 40 of 2009 for the offence punishable under Sections 324/34 of the Indian Penal Code and Section 304 II/34 of the Indian Penal Code. The learned Trial Judge handed down sentence to the appellants for the offence punishable under Sections 324/34 of the Indian Penal Code for rigorous imprisonment for a period of two years along with fine of Rs. 1,000/- in default to suffer simple imprisonment for further two months. He also handed down sentence for the offence punishable under Sections 304 II/34 of the Indian Penal Code against the appellants to suffer rigorous imprisonment for seven years along with fine of Rs. 50,000/- each, in default to suffer simple imprisonment for six months each. A sum of Rs. 90,000/- was directed to be paid to the family member of the victim towards compensation, if realised.

2. The fact of the case as disclosed from the FIR is that on 19th September, 2006 at about 12.30 p.m. one Suresh Roy, since deceased and his brothers, namely, Badal Roy and Sudal Roy trespassed into the house of the de facto complainant and started abusing them with filthy language. Hearing such abusing words, the elder brother of de facto complainant, namely, Jyotish Sarkar came out of his room. Seeing him, the accused persons started assaulting the elder brother of the de facto complainant on the allegation that a cow belonging to the family of the de facto complainant was grazing in the land of the said Suresh. In course of altercation, Suresh assaulted Jyotish Sarkar, elder brother of the de facto complainant with the sharp end of a crowbar on his head. On being assaulted as such, the elder brother of the de facto complainant fell down on the ground then Sudal Roy assaulted the elder brother of the de facto complainant on his chest with the help of a bamboo. The wife of the elder brother of the de facto complainant rushed to the place of occurrence raising hue and cry saying “bancho bancho.” At that time the accused Badal Roy assaulted the wife of the elder brother of the de facto complainant with the help of a “dao” on his hand causing bleeding injury. The sons of Jyotish Sarkar, namely, Babulal and Manik rushed to the spot and saved their parents from the hands of the accused persons but they were also assaulted to death. Hearing hue and cry of the injured persons, local people and the de facto complainant reached the place of occurrence and shocked that the elder brother of the de facto complainant was lying on the ground almost in unconscious state. Habitually he and his wife were sent to Moynaguri Hospital where the attending doctor examined them and the elder brother of the de facto complainant was declared a dead.

3. On the basis of the said complaint, police registered Moynaguri Police Station Case No. 182 of 2006 under Sections 447/324/325/304/34 of the Indian Penal Code and took up the investigation of the case. The investigation concluded with filing of the charge-sheet against three above named accused persons before the jurisdictional Magistrate. Since the offence under Section 304 of the IPC is exclusively triable by the Court of Sessions, the case was committed to the court of the learned Sessions Judge, Jalpaiguri. Subsequently it was transferred to the 2nd Fast Track Court of the learned Additional Sessions Judge for Trial and disposal.

4. It is pertinent to mention here that during the pendency of the trial accused, Suresh Roy died and the case against Suresh Roy, since deceased, was filed forever. The remaining two accused persons who are appellants before this Court suffered an order of conviction and sentence. Hence, the instant appeal.

5. Since the filing appellants failed to take any step because of the fact that the appellants are languishing in correctional home to serve sentence passed by the Trial Court and there is nobody to look after