Asha Arora, J. - (1.) THE instant appeal is directed against the judgment and order dated 9th March, 2006 and 10th March, 2006 passed by the Additional Sessions Judge 3rd Court, Murshidabad in Sessions Trial No. 1 of July, 2001 arising out of Sessions Serial No. 81 of 1993 convicting the appellant Nos. 1 and 3 for the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code and the appellant No. 2 for the offence punishable under Section 304 Part II of the Indian Penal Code and sentencing the appellant No. 1 to suffer simple imprisonment for three years for the aforesaid offence while the appellant Nos. 2 and 3 have been sentenced to suffer rigorous imprisonment for 10 years each. The appellant No. 2 has also been sentenced to pay a fine of Rs. 10,000/ - in default to suffer rigorous imprisonment for six months for the offence punishable under Section 304 Part II of the Indian Penal Code while the appellant No. 3 has been sentenced to pay a fine of Rs. 5,000/ - in default to suffer rigorous imprisonment for three months for the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code (for short referred to as the I.P.C.).
(2.) AT this juncture it is significant to mention that during the pendency of the appeal one of the appellants namely, the appellant No. 1 Bonomali Mondal reportedly died. Accordingly, on the basis of his death certificate, the appeal abated as regards the aforesaid appellant Bonomali Mondal. Prosecution case, bereft of unnecessary details is as follows: On 12/3/91 at 07.45 hrs one Goutam Mondal (P.W 1) son of Umapada Mondal lodged a written complaint at Berhampur Police Station stating that since long there has been dispute and litigation in respect of property between his father and uncle on one hand and the appellant No. 1 on the other. On 12/3/91 at about 6.30 a.m there arose a dispute over a plum tree which was situated on the 'ejmali' property. For making arrangement of a cooking space near the house for the marriage of Sankar Mondal, son of Anil Mondal (P.W 4), there was cutting of a small branch of the plum tree but the accused persons/appellants obstructed and started abusing in filthy language. They also threatened with 'heso', 'lathi' and 'sarki'. Pursuant to the dispute everyone proceeded towards the house and the plum tree including the de facto complainant's father and his two brothers. At that time the three accused persons/appellants took the de facto complainant's father/deceased victim within their grip. While the appellant Nos. 1 and 3 caught hold of the victim and carried him towards the courtyard, appellant No. 2 Biswajit Mondal went to his house and brought a 'heso' which was struck in his abdomen in consequence of which the victim Umapada Mondal was severely injured and the entrails of his abdomen came out. The injured victim was taken to Berhampore New General Hospital for treatment where he succumbed to the injuries on the same day at about 12.00 noon.
(3.) ON the basis of the aforesaid written complaint (Exhibit 1), Berhampore P.S Case No. 70 of 1991 dated 12/3/91 under Section 326/34 of the I.P.C. was initiated against the three accused/appellants. Investigation into the case culminated in the submission of the charge -sheet under Section 304/34 of the I.P.C. against the three accused persons/appellants.;