JUDGMENT :

(Subhendu Samanta, J.)

1. The instant appeal is directed against the judgment and order of conviction and sentence dated 21.03.1990 passed by the Learned sessions Court Nadia in sessions trial no. 1 (iv) 89 corresponding to Sessions Case no 7(7) 89 finding the present appellants guilty u/s 304 part II of IPC and convicting and sentencing the appellants to suffer rigorous imprisonment for 5 years each and to pay a fine of Rs. 100 each i/d to further RI for 15 days.

2. The brief fact of the prosecution case is that one Sahel Ali Mandal (PW 1) lodged a written complaint with IC Katwali Police station, Krishnanagar, Nadia contending inter alia that present appellants along with three others on 10.05.1987 in the morning had an altercation between father of the complainant Janab Ali Mandal and at the intervention of the other villagers the matter was set at rest. The appellant/accused persons threatened that they would murdered Janab. Thereafter, at 8: 30 P.M. on that date, while the complainant and his brother Babar Ali Mandol were engaged in stacking straw in the Khamar, their father Janab Ali was proceeding though that place towards the Mosque to offer namaj, at the time the appellants/accused persons jumped upon him and assaulted indiscriminately. The appellant/accused persons were armed with Lathi shabal etc. The appellants failed the victim on the ground and throttled him and assaulted with a brick on his chest and pressed his testicles and caused his death. While complainant tried to resist the appellants/accused persons, they assaulted him on his head with Shabal and caused bleeding injuries, his younger brother Babar Ali raised alarm and people assembled there at the time appellants/accused persons fled away.

3. Police case was ended in charge sheet.

4. The present appellants including other three accused persons were sent up for trial. Charge was framed against all the accused persons u/s 148/149/325/307/302 of IPC. all the accused/ appellants pleaded not guilty and claimed to be tried. During the trial prosecution has examined 14 witnesses to prove its case but the defence examined none.

5. It is the case of the defence that while the deceased was going to Mosque through khamar he fell down and received injury and expired.

6. After conclusion of the trial and hearing of the prosecution and the defence Learned sessions Judge though found not guilty of charges made against all 05 accused persons but found guilty the present appellants for the offence punishable u/s 304 part II IPC.

7. Being aggrieved by and dissatisfied with the impugned judgment and sentencing the instant appeal has been preferred.

8. Learned advocate for the appellants submitted before this court that the impugned order of conviction and sentenced passed by the Learned Sessions Judge is palpably illegal in the eye of law. The prosecution has failed to bring home the charge against the accused persons thus they need be acquitted from the case. The Learned sessions Judge has committed error in convicting the present appellants u/s 304 part II of the IPC, though no charge has been framed. The witnesses of the prosecution are not supported the case of the prosecution at all, most of them are declared hostile and some of them though did not support the prosecution case are not declared hostile by the prosecution; thus the Learned Sessions Judge has committed an error by passed the impugned order of conviction and sentence against the present appellants.

9. Learned Advocate for the appellant further argued that the PW 1 who is the complainant sustained injury but only to falsely implicate the appellants he stated that appellants assaulted him on P.O. PW 3 is the family member of deceased, subsequently reached to the spot so his evidence cannot be believed. PW 1 though stated before the court that he sustained injury by the assault of the accused persons but no medical document was adduced or produced by the prosecution to prove the fact. PW 4 and PW