Joymalya Bagchi, J. - (1.) The appeal is directed against the judgement and order dated 22nd/23rd December, 2014 passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Jangipur, Murshidabad in Sessions Sl. No. 48/08 (Sessions Case No. 825/2014) convicting the appellants for commission of offence punishable under Section 304 Part-I of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for six months more.
(2.) The prosecution case as alleged against the appellants is to the effect that on 16th September, 2004 at around 2:30 P.M. the victim, Apel Ghosh was grazing buffaloes in the field. At that time appellant no.1 namely, Uttam Ghosh assaulted him with a lathi at the instigation of appellant no.2 namely, Gouranga Ghosh, his elder brother. As a result of assault the victim fell on the ground. Parishod Ghosh (PW3) rescued the victim. He called Arun Ghosh (PW10) and they brought Apel to the house of Tinkari Ghosh (PW1), the uncle of the victim. As his condition was serious, he was shifted to Jangipur hospital and complaint was lodged against the appellants at Suti Police Station resulting in registration of Suti P.S. Case No. 141/04 dated 23rd September, 2004 under Sections 325/34 IPC. In the meantime the victim was shifted to Nil Ratan Sircar Medical College & Hospital where he breathed his last on 2nd October, 2004. Thereupon, section 304 of the Indian Penal Code was added to the array of offences in the FIR. In conclusion of investigation, chargesheet was filed against the appellants. The case being a sessions triable one was committed to the Court of Sessions and was transferred to the Court of the Additional Sessions Judge, Fast Track, 1st Court, Jangipur, Murshidabad for trial and disposal. Charges were framed against the appellants under Sections 304/34 IPC. The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 11 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgement and order dated 22nd/23rd December, 2014 convicted and sentenced the appellants, as aforesaid.
(3.) Mr. Siladitya Sanyal, learned senior advocate along with Mr. Arindam Jana, learned advocate appearing for the appellants argued that the evidence of the eye-witnesses namely, PW1 & 10 are not credible as it is doubtful as to whether they were present at the place of occurrence. Other so-called eyewitnesses namely, PW2 & 3 were declared hostile and did not support the prosecution case. Medical evidence also does not support the ocular version of the said witnesses. Hence, the appeal is liable to be allowed.;