Girish Chandra Gupta, J. - (1.) This appeal is directed against a judgment and order dated 26th November, 1992 passed by the Additional Sessions Judge, Malda in Sessions Trial No. 5 of 1992 arising out of Sessions Case No. 1 of 1991 convicting the appellant No. 1 under section 302 of the Indian Penal Code and the appellant No. 2 under section 324 of the Indian Penal Code as also against an order, passed on the same day after giving an interval of 5 hours so as to afford an opportunity to the convicts to ponder over the matter, by which the appellant No. 1 Deben Mondal was sentenced to suffer imprisonment for life and to pay fine of Rs. 1.000/-, in default, to undergo further rigorous imprisonment for a period of three months sentencing the appellant No. 2 Dulal Mondal to suffer rigorous imprisonment for two years.
(2.) The case of the prosecution briefly stated is as follows:- On 10th January 1987 Radhesh Mondal of Raipur within Kaliachalk Police Station in the district of Malda was felling a neem tree in his garden. The appellant No. 1 Deben Mondal rushed at the site and staked a claim to the garden itself including the neem tree. Radhesh replied stating that he would forbear from felling the tree if Deben could prove his title to the garden. The felling of the tree was dropped for the day. At about 6 a.m. in the morning of 11th January, 1987 Deben, the appellant No. 1 together with his sons Dulal and Jovial and his brother-in-law Fakir reached the house of Radhesh and called him to the garden. Radhesh went to the garden. An altercation ensued between them. Deben dealt blows upon Radhesh. So did his companions. Wife of Radhesh rushed to rescue him. She was dealt a deadly blow by a hasua by Deben. She died at the spot. Baidyanath, son of Radhesh (P.W. 1) rushed to rescue his parents. He was also dealt a blow. He suffered injury. P.W. 1 Amar Kumar Das, an outsider, intervened. Dulal dealt a hasua blow on him causing bleeding injury. Nikhil (P.W. 5) intervened. He was also dealt a hasua blow on his forehead by Dulal. Both Radhesh and his wife were taken to hospital. Wife of Radhesh was declared dead. Radhesh underwent treatment at the hospital for 15 days. P.W. 1 Baidyanath, P.W. 4 Amar and P.W. 5 Nikhil were also treated.
(3.) On behalf of the defence one Bibhuti Bhusan Chakraborty was examined. He at the relevant time was record supplier of the Record section of Malda District Hospital. He produced records of the hospital which were marked Exhibits A and Al which are bed-head tickets relating to Dulal and Fakir. The evidence of P.W. 12, the 1.0. is that he arrested the accused Dulal and Fakir from Bedrabad Primary Health Centre on 11th January 1987 and he had then transferred to Maida District Hospital on 11th January, 1987. The Exhibits A and Al suggest that the accused Dulal and Fakir received injuries on their person and that they reached the hospital at 2.25 p.m. and they were discharged from the hospital on 19th January, 1987. No doctor nor any medical officer of the concerned hospital was however examined on behalf of the defence.;