RAJARSHI BHARADWAJ,J. - (1.) The instant appeal has been preferred by the appellants against the judgement and order dated 11th July, 2001 and 12th July, 2007 passed by the learned Additional Sessions Judge, 6th Court, Alipore, South 24-Parganas in Sessions Trial no. 2(2) of 1999, convicting the appellants for commission of offence under Section 304 Part-11/34 of the Indian Penal Code and sentencing the appellant nos. 1 to 4 to suffer rigorous imprisonment for 6 years and to pay a fine of Rs. 1,000/- each; in default simple imprisonment for one month and considering the age of the appellant no.5, he was sentenced to suffer rigorous imprisonment for 4 years and to pay a fine of Rs. 1000/-; in default simple imprisonment for one month.
(2.) The prosecution case in brief is that on 10th May, 1996 at 9.15 hours one Nanda Dulal Halder, son of late Haran Chandra Halder of Chaitanyapur Police Station lodged a written complaint alleging that on 9th May, 1996 at 17.30 hours out of some previous grudge Panchu Halder, Monoranjan Halder, Bikash Halder, Pankaj Halder, Tarun Bhowmick and some one or two others were assembled in front of the house of the complainant with iron rod, lathi, brick bats etc. and started abusing them saying that Dulal Halder deposed against them before the Court and in favour of Prafulla Kansari. Their elder brother Dulal Halder told them that they did not at all make their deposition against them. A hot altercation took place over this issue. In the meanwhile, they jointly with lathi, rod etc. started to beat his elder brother Dulal. When Dulal fell down on the ground, another brother Sahadeb Halder came in rescue of him and they also assaulted him badly on his head and body. Seeing the arrival of the neighbours they fled away. The complainant and his neighbour removed his unconscious elder brother Dulal to Nimpith Hospital and seriously injured Sahadeb Halder to Mathurapur Rural Hospital for treatment. The Medical Officer of Nimpith Hospital, P.S. Joynagar attended his elder brother Dulal and declared him dead. The Medical Officer of Mathurapur Rural Hospital transferred his another brother Sahadeb Halder to S.D. Hospital, Diamond Harbour and seeing his serious condition the Medical Officer of S.D. Hospital, Diamond Harbour also transferred him to M.R. Bangur Hospital, where he was under treatment.
(3.) On the basis of the written complaint, a criminal case, being G.R. Case no. 490 of 1996 arising out of Mandirbazar Police Station Case no. 27 dated 10th May, 1996 was started under Sections 147/148/149/326/304/506 of the Indian Penal Code against the accused persons and charges were framed against the accused persons under Sections 302/323/34 of the Indian Penal Code. The said charges were read over and explained to the accused persons and they pleaded not guilty and claimed to be tried.;