- (1.) This appeal is directed against a judgment and order dated 28th June, 2002, passed by the learned Additional Sessions Judge, 1st Court, Jalpaiguri, in Sessions Case No. 328 of 1999 corresponding to Sessions Trial Case No. 35 of 2000 by which all the three accused persons were convicted under Part II of section 304 of the Indian Penal Code read with section 34 of the IPC as also under section 447 read with section 34 of the IPC. For the major offence, the convicts were sentenced to rigorous imprisonment for a period of ten years each as also to pay fine of a sum of Rs. 3000/- each, in default to undergo further imprisonment for a year each, and for the offence punishable under section 447 of the IPC, they were sentenced to imprisonment for three months each. Both the sentences were directed to run concurrently. The facts and circumstances of the case briefly stated are as follows : The deceased Harani Roy and his sons, namely, Monoranjan Roy, Nakul Roy and Arjun Roy, were engaged in cultivating a piece of land. The accused persons tried to prevent them from doing so. The bullocks were untied by them. After a brief exchange of heated words, all the three accused persons Jumped upon the deceased armed with deadly weapons like axe. The deceased Harani Roy fell down on the ground with bleeding injuries. He was shifted to Jalpaiguri Hospital and from there, for better treatment he was sought to be shifted to North Bengal Medical College and Hospital but he died in transit.
(2.) The accused persons during their examination under section 313 of the Code of Criminal Procedure did not make any defence. However, from the suggestion given to the witnesses of the prosecution, the case of the defence appears to be that the accused persons were the owners of the land which the deceased was trying to cultivate. It was also suggested that Bhagindar, father of the accused Subal Roy, had, in fact, brought the said Harani Roy from Bangladesh. It is not in dispute that the accused persons used to address the deceased as uncle. It was also suggested that a counter-case had been lodged in which all the sons of the deceased were the accused persons. There is some indication in the written complaint to show that other than the deceased, his sons were also assaulted and all of them had suffered bleeding injury.
(3.) Mr. Banerjee, learned Counsel, appearing in support of the appeal, submitted that there was, in fact, a counter-case started by the accused persons under section 147/148/149/326 read with section 34 of the Indian Penal Code. He submitted that the accused persons were also very seriously injured. There is however, no evidence on the record to indicate that any of the accused persons was injured.;