JUDGMENT :

DEBANGSU BASAK, J.

1. Pandua police station had received a written complaint from prosecution witness (PW) 1 on October 23, 2013 with regard to an incident of assault occurring on October 21, 2013 in which her son, the victim suffered grievous hurt at the hands of the appellants and was hospitalised.

2. Such written complaint had been registered as First Information Report bearing No. 454/13 dated October 23, 2013 under Sections 448/324 of the Indian Penal Code, 1860.

3. The victim had died on November 14, 2013. On November 16, 2013, police had prayed for adding Section 304 of the Indian Penal Code, 1860 before the jurisdictional Court which was allowed. Police had submitted charge sheet against the appellant on February 31, 2014 under Section 448/324/325/326/304/34 of the Indian Penal Code, 1860 against the appellants.

4. Charges as against the appellants under Sections 448/326/304 (i)/34 of the Indian Penal Code, 1860 had been framed against the appellants on January 10, 2018. The appellants had pleaded not guilty and claimed to be tried.

5. At the trial, the case of the prosecution was that, on October 21, 2013, at about 3 PM, the appellants had committed house trespass by entering into the house in the possession of Suraj Murmu and used as a human dwelling house with intent to commit murder. The appellants had on the same date, time and place voluntarily caused grievous hurt to Suraj and the victim by means of sharp cutting weapon and iron rod. The appellants on the same date, time and place committed culpable homicide not amounting to murder by causing the death of the victim.

6. In order to prove the charges as against the appellants, the prosecution had examined 13 witnesses and relied upon various documentary evidences. On conclusion of the evidence of the prosecution, the appellants had been examined under Section 313 of the Criminal Procedure Code where they claimed to be innocent and falsely implicated.

7. By the impugned judgment of conviction dated February 29, 2022, the learned judge had found the appellants not guilty for the offence punishable under Section 448 of the Indian Penal Code, 1860 and acquitted both of them of such charge. The learned judge had however found the appellants guilty for the offences punishable under Section 304 part I and Section 326 of the Indian Penal Code, 1860.

8. By the impugned order of sentence dated February 20, 2022, the learned judge had convicted the appellants to suffer rigourous imprisonment for 10 years and also to pay a fine of Rs. 2000 each and in default to suffer simple imprisonment for further 6 months for the offence punishable under Section 304 part I of the Indian Penal Code, 1860. The appellants had been sentenced to suffer rigourous imprisonment for 3 years and also to pay a fine of Rs. 500 each and in default to suffer simple imprisonment for further 2 months only for offence punishable under Section 326 of the Indian Penal Code, 1860. Both the sentences had been directed to run concurrently.

9. The appellants have assailed the judgment of conviction and the order of sentence passed against them by the learned Additional Sessions Judge, 3rd Court, Chinsurah, Hooghly in Sessions Trial No. 01 (01) 2018 arising out of Sessions Case No. 127 of 2017 in the present appeal.

10. Learned advocate appearing for the appellants has submitted that, both the appellants are innocent. He has referred to the deposition of the various prosecution witnesses. He has contended that, from the deposition of PW 2 it is clear that the appellant No. 1 had assaulted the victim by kicking the victim in his abdomen. The prosecution had failed to prove that appellant No. 1 had any knowledge or intention to commit an act of murder. According to him, Section 304 part I of the Indian Penal Code, 1860 has no manner of applications in the facts and circumstances of the present case. He has relied upon 1993 Suppl (1) Supreme Court Cases 642 (Kedar Prasad and others versus State of Madhya Pradesh)