Judgment :- (1) Two appellants assail the judgement and order of conviction and sentence passed against them on 13th August of 1988 by the Learned Additional Sessions Judge, Cooch Behar whereby the appellant Haladhar Barman was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2,000/-with default stipulation on account of his conviction under Section 323 of I.P.C. and to suffer rigorous imprisonment for six months and to pay a fine of Rs. 100/-with default stipulation on account of the conviction under Section 323 of I.P.C., appellant Kandura Barman @ Sadhu was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 100/- with default stipulation on account of conviction under Section 323 of I.P.C. (2) P.W.1, Mathura Nath Barman of Village Dwariaka lodged a written ejahar with O.C. Dinhata Police Station at 18.15 hours on 8th October, 1979 against these two appellants and one Paresh Barman alleging the following facts. (3) When P.W. 1 Mathura Nath Barman was in his bed in the night between 7.10.1979 and 8.10.1979 the mother-in-law of the deceased Nagen Barman came to him at about 2.30 A.M. and reported to him that the two appellants and Paresh Barman son of late Mukunda Barman and also 7/8 persons of the Village called Nagen Barman, her son-in-law, and Pratap Sarkar and took them into custody by breaking open the door of house. P.W. 1 then came to the house of Nagen with his mother-in-law. There Mantu said that on 7.10.1979 Nagen, Pratap Sarkar, Barodakanta Adhikary and three other workers worked on jute in the house of Kandura Sarkar. Mantu further reported that he saw Nagen and Pratap being taken by the appellants and others towards the house of Paresh Barman in the night. Prataps wife Ramani told that her husband also had been taken away by 10/11 persons. Then P.W. 1 Mathura Nath, being accompanied with Mantu, Harendra and Paresh (not the accused Paresh) came to the house of Paresh Barman son of late Mukundu Barman. On the way he met with one Buda Burman and he also came out. Then Jatin, the brother of Pratap, and Ramani, the wife of Pratap, were found coming out from the house of accused Paresh Barman. On the way he met with one Buda Burman and he also came out. Then Jatin, the brother of Pratap, and Ramani, the wife of Pratap, were found coming out from the house of accused Paresh Barman. And they told P.W. 1 and his companions that in the house of accused Paresh Barman the accused Kandura and the people of the gang left Nagen, Pratap and Barodakanta. Then the appellants proceeded to the house of Kandura and chased Pratap. P.W. 1 meanwhile came to the house of Kandura but before that he met Upendra Adhikary on the way who told him that Haladhar Barman beat Nagen, Pratap and Barodakanta and took the three persons towards the house of Kandura. Nagen was found lying on a danga land and another Nagen Barman stood beside the injured Nagen. Nagen was found dead. Pratap and Barodakanta were also seriously beaten. (4) The case under Section 448/342/323/304 of I.P.C. was registered against the two appellants and one Paresh Barman son of late Mukunda Sarkar of Village Dawariaka, and upon completion of investigation charge-sheet was submitted under the aforesaid Section of law, (5) The Learned Additional Sessions Judge, Cooch Behar framed charges against the two appellants, Paresh Barman son of Mukunda Barman and other accused persons under Section 304 (II) read with Section 34 of IPC and Section 323 read with Section 34 of I.P.C. Trial was concluded with examination of sixteen witnesses and conviction and sentence was recorded against the two appellants only while the other accused persons including Paresh Chandra Barman were acquitted. (6) It is P.W. 2, Pratap Chandra Sarkar and P.W. 3 Baroda Kanta Adhikary the two injured witnesses who are the main speakers of the prosecution case. Before we proceed to consider the evidence of these two witnesses it is worthwhile to narrate the evidence of P.W. 1 Mathura Nath Barman, maker of the First Information Report who is not the eye witness to the incident. His evidence is in brief that in the night of 2.00 Clock on 8.10.79 Nagens mother-in-law called on his house and told that the two appellants and others took away Nagen and Pratap from the respective house. P.W. 1 then came to the house of Nagen where he found Mantu who said that Nagen and Pratap worked in jute in the house of Kandura and allegedly committed theft of jute. P.W. 1 then came to the house of Nagen where he found Mantu who said that Nagen and Pratap worked in jute in the house of Kandura and allegedly committed theft of jute. He then with Haren and Paresh (not the accused Paresh) started for the house on Kandura but on the way near the house of Budha he met Jatin and Ramani who said that tremendous noises were being heard in the house of the accused Paresh Barman of Dawariaka and that Nagen, Pratap and Baroda Kanta were beaten by the two appellants and others. P.W. 1 proceeded further towards the house of Paresh and on the way Upen Adhikary told him that Nagen and Pratap had been taken to house of Kandura and that a man was lying at a distance of 1/2 feet from his house. P.W. 1 hurriedly went to that place and found Nagen dead with accused Nagen standing. P.W. 1 reported the incident to the Anchal Pradhan. He also called local Chaukidar who reported the incident to a local police camp, and then lodged the F.I.R. (7) It would appear that P.W.1 was a reported witness. Incident was reported to him by different persons namely Nagens mother-in-law Mohini, Prataps wife Ramani, Jiten, Mantu, Upen Adhikary and others successively on the way between his house and the place where Nagen was found dead on a danga land. The genesis of the incident is said to be an allegation by Kandura that Nagen, Pratap, Baroda Kanta committed theft of jute while working in the house of Kandura. (8) P.W. 2, Pratap Chandra Sarkar says as follows : "At about 11/12 0 clock at night I was called from outside when I came out. Then I saw about 13/14 persons standing there out of whom I had seen this accused Kandura, Hale, Rupchand, Uttara, Nagen, Makal, Dinanath, Ramesh, Babunath and Budha were seen by me. All those accused persons named above by me are now present in Court. (The witness points out each accused in the dock by name and those he has identified all of them who ha ve admitted their names as correct). As soon as I came, Rupchand caught hold of my one hand each and took me to the house of Nagen. (The witness points out each accused in the dock by name and those he has identified all of them who ha ve admitted their names as correct). As soon as I came, Rupchand caught hold of my one hand each and took me to the house of Nagen. Then while I was detained there accused Kandura, Hale, Uttara and others went inside the room of Nagen by breaking open his doors and took Nagen out of his room. Then I and Nagen were taken along with road to the house of Paresh of Dwarika. Said Paresh of Dwarika is an accused in this case who is now present here (identified). Going there we saw that Baroda Kanta was tied with a bullock cart. There Kandura, Hale and Rupchand told me that we had stolen his jute. I told them that we did not commit any theft in respect of his jute. As soon as I said that they began to assault me. They also assaulted Baroda Kanta and Nagen. We 3 were assaulted by Kandura, Hale and Uttara. Some other persons also assaulted us but I did not notice them specifically. Those persons named above also assaulted said Baroda and Nagen. They assaulted us by means of fists and blows and also some of them by lathies. As a result of said assault we sustained swelling injuries. Then Ramani of our Village and my brother Jatin came there and asked them as to why we were brought there and assaulted. They told them that we had committed theft of their jute and they directed them to go away otherwise they would also be assaulted. They went away. Then they tied me and Baroda by means of a one rope on our waists. At that time I was wearing a Lungi and Baroda was wearing a Dhuti. A separate rope was tied on the waist of Nagen said Nagen was then wearing a Dhuti. The other end of that rope was caught hold by the accused Nagen. Said accused Nagen is now present in Court (identified). Our rope was caught hold by this accused Hale. Then we 3 were taken to the house of Kandura as per his direction. Nagen was taken ahead of us and we two were behind him. The other end of that rope was caught hold by the accused Nagen. Said accused Nagen is now present in Court (identified). Our rope was caught hold by this accused Hale. Then we 3 were taken to the house of Kandura as per his direction. Nagen was taken ahead of us and we two were behind him. After we 3 proceeded thus at a distance of about 1/2 bigha then Hale left our rope and went ahead and gave a blow by means of fists on the ribs of said Nagen. (since deceased). As soon as Hale gave him that blow Nagen cried out in pain and asked for water and fell down and then they said that we should be taken away to the house of Kandura and Nagen would be taken there after he is cured. They kept accused Nagen, Upen and Paresh waiting there by the side of the said Nagen (since deceased). Then I and Baroda were taken to the house of Kandura where we two were tied along with a tree. After 10/15 minutes we came to know that Nagen died. Then Kandura was at his house and other persons left and went away. We were thus kept tied there." (9) P.W. 3, Baroda Kanta Adhikary gives the following version of the incident in his evidence "Incident took place on 20th Aswin, 1386B.S. (Sunday) at about 8 O clock at night I was caught hold by Kandura @ Sadhu, Paresh Barman, Hale, and Nagen Barman and told me that I had stolen jute of kandura Sadhu and I was directed to go to the house of Kandura Sadhu. All these accused persons named above by me are now present in Court (identified all the accused persons one by one by name who admit the same as correct). I was taken to the house of Kandura Sadhu where I was tied with a bullock cart and there Kandura Sadhu, Hale and Nagen Barman assaulted as by means of cane lathi saying that I had stolen jute. I told them that I had not stolen any jute. Then Hale, Kandura Sadhu, Nagen and Paresh Barman told that Nagen Barman and Pratap Barman should be brought there. I told them that I had not stolen any jute. Then Hale, Kandura Sadhu, Nagen and Paresh Barman told that Nagen Barman and Pratap Barman should be brought there. As I, Nagen and Pratap had done the work of Kandura Sadhu in respect of taken out jute from the jutes filed, so those two persons we asked to be brought in there: Then Pratap and Nagen were brought at the house of Paresh Barman where I was kept tied. I was at first taken to the house of Paresh Barman and not at the house of Kandura Sadhu where I was tied with bullock cart. Then Nagen and Paresh Barman were taken to the house of Paresh Barman at Village Dana where I was kept tied. Said Paresh Barman is now present in Court (identified the accused on dock). There Kandura Sadhu, Hale, Rupchand, Babunath, Nagen Barman assaulted me, Pratap and Nagen by means of lathis. No bleeding injuries were caused to us. Nagen Barman became almost senseless and then Kandura told that we should be taken to his house where would be tied. Then I and Pratap we tied with a rope which was caught hold by Hale and Nagen was tied with another rope which was caught hold by the accused Nagen. When Nagen Barman was proceeding through a place at a little distance off house of Paresh then Nagen was taken sometime when the accused Hale came there and assaulted him by means of a blow with fists". (10) P.W. 4, Harendra Barman is report witness his evidence is as follows : *Incident took place on 20th "Aswin, 1386 B.S. Sunday at About 1.30/2 O" clock at night. At that time J was sleeping at my house when I heard a cry at the house of Pratap. While I was coming to the house of Pratap I met the wife of Pratap near his house when she told me that 14/15 persons came to her house and took away her husband Pratap. She further told me on being asked by me that her husband Pratap along with Baroda and Nagen worked at the house of Kandura Sadhu in respect of jute over which they made an allegation falsely about theft and on that false allegation they took away her husband just then. She further told me on being asked by me that her husband Pratap along with Baroda and Nagen worked at the house of Kandura Sadhu in respect of jute over which they made an allegation falsely about theft and on that false allegation they took away her husband just then. Nagen and Pratap had good reputation in our village and I never heard anything against them regarding the allegation of theft so I along with Mathura, Paresh Adhikary and Mantu left for the house of Paresh Barman at Dwaria where he was taken. I know said Paresh Barman of Dwaria who is now present in Court, (identifies the accused in dock). While we came near the house of Budha then on the path way met Ramani and Jatin who had been coming back from the house of Pratap. They told us that at the house of Paresh Barman, Pratap, Nagen and Baroda Kanta were assaulted in their presence and when they protested they were directed to go away and so they had been coming back. Then we said four persons again proceeded towards the house of Paresh. On our way we met Upen Adhikary who told us on our question that said 3 persons were taken from the house of Paresh to the house of Kandura but one might have expired by that time. He further pointed the place which was about 3 bighas from the house of Paresh where a lamp was found to be burning and he told us that the said man was laying there. We at once went to that place and saw that Nagen who is now dead was lying there and the accused Nagen was standing near him." (11) P.W. 5, Ramini Mohan gives the following version : "I came out and went to the house of Pratap which was at a distance of one bigha from my house. Then I saw at the house of Pratap, Kandura Sadhu, Hale, Rupchand, Budha, Dina, Kamal, Babunath, brother of Babunath, Uttara and Kanchan who were dragging Pratap and wife of Pratap was resisting them. They pushed down the wife of Pratap. I know all those accused persons named who are now present in Court (identified all the accused persons one by one by their names who also admit the same as correct). They pushed down the wife of Pratap. I know all those accused persons named who are now present in Court (identified all the accused persons one by one by their names who also admit the same as correct). Seeing such incident I came out and began to call Jatin brother of Pratap saying that his brother Pratap was being dragged in that manner. Jatin came with me and then again we heard a cry from the house of Nagen and accordingly we went to the house of Nagen. Coming there I saw Budha and Rupchand holding Pratap and the other accused persons named above had enter inside the Ghar" of Nagen. Going there I further saw that accused Dina was holding a bundle of burning jute stick in his hand standing at the door of Nagen was crying and said Nagen was standing inside his room and by means of his one hand he was holding a bamboo post and his other hand was being dragged by Kandura, Hale and Nagen. Said Kandura, Nagen, Hale, Dina, Rupchand and Budha are also now present in Court (identifies each accused by name who are now present in Court). I requested them not to drag Nagen in that manner when Nagen fell on my feet and asked me to save him. When I asked Nagen fell on my feet and asked me to save him. When I asked Nagen as to what he had done he said he had done nothing. At this those persons dragged out and took away Nagen. They also took away Pratap with them. They took them on a road to the north and I and Jatin followed them. They took them to the house of Paresh at Dwaria. Said Paresh of Dwaria is present in Court (identifies). At the house of Paresh, Baroda was already there and these two persons were also taken there and all of them were tied by means of rope with a bullock cart. Then accused Puma assaulted Baroda Kanta by means of a split bamboo. Said Puma is present in Court (identifies the accused who discloses his name as Purnanda). Then Hale and Budha assaulted Baroda Kanta. Then I requested Kandu a not to assault them in that manner and to make over them to me so that I can take them a way. Said Puma is present in Court (identifies the accused who discloses his name as Purnanda). Then Hale and Budha assaulted Baroda Kanta. Then I requested Kandu a not to assault them in that manner and to make over them to me so that I can take them a way. Kandura told me that from there they would be taken to his house where they would be taught a lesson and thereafter they would be left. When I insisted for there released then Upen Adhikary asked me as to who had called me there and told me that I was not required to mediate there. Then I and Jatin decided to leave that place for collecting more men of our village and accordingly we left that place. On our way came to the house of Budha Barman where we saw Khagen, Dina sitting there then Mathura, Kris, Mantu and Paresh came there at the house of Budha: There I had a talk with them when I told them that I was not allowed to say anything and accordingly I requested them to accompany me so that we could go there at the house of Paresh. Then we went to the house of Paresh but we found anybody there. From there we saw the light of a lamp on the South West comer. Then we went to that place where we say the, light of the lamp and met Nagen who is a man of Dwaria and he is now present here (identifies accused Nagen in dock). There I saw another Nagen who was lying dead and this accused Nagen stated to me that the other Nagen was then dead." (12) P.W, 6, Mantu corroborates the evidence of the preceding witness. (13) P.W. 7, Jamini Bala Barman, wife of the deceased Nagen Chandra Barman safd that the appellants along with others took her husband from the house around the following morning. Ramani (P.W. 5) reported to her that her husband was lying dead. (14) P.W. 8, Mohini Barman is a reported witness. (15) P.W. 12, Parul Bala Sarkar corroborates, P.W. 13, Anita Bala Sarkar and P.W. 14, Sarbananda Adhikary corroborated the evidence of P.W. 2 and 3 and it is not necessary to reproduce the same once again. (16) P.W. 9, Dr. B.K. Sen Mazumdar examined Pratap and Baroda Kanta at Dinhata P.H.C. on 9.10.79 but found no external injury. (15) P.W. 12, Parul Bala Sarkar corroborates, P.W. 13, Anita Bala Sarkar and P.W. 14, Sarbananda Adhikary corroborated the evidence of P.W. 2 and 3 and it is not necessary to reproduce the same once again. (16) P.W. 9, Dr. B.K. Sen Mazumdar examined Pratap and Baroda Kanta at Dinhata P.H.C. on 9.10.79 but found no external injury. He says that echymosis and swelling generally disappear from the persons of human being after 2/3 days if they are moderate in nature. (17) P.W. 10, Dr. M. Sarkar held post-mortem examination on the body of the deceased and found as follows : "On examination I found that the body ematiated, eye closed, mouth half open, rigorscrtis negative. I found no external injury on his person and heart was found to be enlarged and myocardium hypertorphied by ventricles. Both catvies left and right ventricles dialeted and full of blood. On the posterior surface of the heart clotted blood seen in the myocardium. Death in my opinion was due to haemorrhage in the myocardium which was ante-mortem and natural. In case of enlarged heart a patient may die if sudden blow or pressure is caused on the area of hear from outside by means of heavy sudden fist blows or by any blunt substance like lathi." (18) In cross-examination he says as follows : " The expression myocardium means the heart muscle. Clotting of blood in the myocardium in this case might be a disease of mycocardiul infraction since it is a case of enlarged heart. It is a fact that in this case it appears that the death might be due to the said disease. It is a fact that in this case the possibility of death owing to such disease is greater. In case of sudden pressure by blow. Such death might cause and there are no attending Injury. But in most of the cases other attending injuries are found. It is a fact that on the person of the said patient either on the ribs or on the back or on the diaphragm or on the body of the heart I found no injury. It is a fact that in this post-mortem report it has not been mentioned by me that any injury was caused to heart. It is a fact that on the person of the said patient either on the ribs or on the back or on the diaphragm or on the body of the heart I found no injury. It is a fact that in this post-mortem report it has not been mentioned by me that any injury was caused to heart. It is not a fact that death owing to injury on the heart is possible without other attending injuries on other parts of the body such as ribs, back, diaphram and heart itself." (19) P.W.15, Manindra Chandra Gope, Inspector of Police drew up a formal F.I.R. (Ext. 1/4), while P.W. 6 N. Basu is the I.O of the case. (20) Having thus recorded sum total of evidence of the witness let us proceed to have a critical appreciation thereof. Pratap, Nagen and Baroda Kanta worked in the house of Kandura and the work included stock verification of jute. On 7.10.79 they worked throughout the day and returned back to their respective home but were called at the dead of the night and pulled out of the houses by the two appellants and one Paresh Barman, since acquitted along with others. They were first taken to the house of Paresh Barman, and as far as Pratap is concerned he was assaulted in the house of Paresh Barman. Major part of the incident took place in the house of Paresh Barman accused where all the three were assaulted by Kandura, Haladhar and other accused persons. Pratap and Baroda were tied up by a rope together and at the other end of the rope there was Nagen then they were taken to the house of Kandura but before they entered into the house of Kandura they were unfastened where Haladhar struck a fatal blow by means of fist on the ribs of Nagen. This is the cause of death of Nagen. The injuries of Pratap, Baroda Kanta were not at all serious. The place of occurrence was first confined in the house of Paresh Barman and then at a place just ahead of the house of Kandura where Nagen was seriously assaulted by Haladhar and the injured succumbed to the injuries. A good number of witness have been cross-examined at great length but the basic fabric of the prosecution case could not demolished. A good number of witness have been cross-examined at great length but the basic fabric of the prosecution case could not demolished. In fact, there was no sufficient evidence of causing injury on the three persons by Paresh Barman in whose house the offence was committed at the first instance. Now the learned defence Counsel capitalize the evidence of P.W.10 to argue that there was no external injury on Nagen who was suffering from heart disease; as such it could not be said the alleged blow on Nagen might be the cause of his death. The doctor says in cross-examination that the possibility of death was greater because of such enlargement of heart and death might be due to said disease. The doctor further said in cross-examination that no injury was noticed on the ribs or on the back or on the diaphram. Therefore, it is argued that Haladhar is not responsible of the death of Nagen. The argument is misconceived. Nagen was having disease of enlargement of heart. At the time of post-mortem examination of the body both the cavities, left and right, ventricles were found full of blood. Heart was found to be enlarged and myocardium-hypertrophied by ventricles. Haladhar might not be knowing that Nagen was suffering from heart ailment but it cannot be said that Haladhar did not cause assault on the heart of Nagen. The two injured P.W. 2 and P.W. 3 are the two eye witnesses who successively stood the test of cross-examination to testify as to why Nagen was assaulted. The matter of the fact is that it was because of severe blow by fists on the chest on Nagen by Haladhar that attributed to the immediate death of Nagen. Learned Trial Court accordingly convicted Haladhar under Section 325 of IPC. So far as Kandura is concerned he was not cause of death of Nagen; he assaulted Pratap and Barodakanta. (21) Having regard to the facts and circumstances of the case as well as evidence-on-record it does not appear that there has been any misappreciation of evidence of the witnesses. (22) So far as Kandura is concerned sentence as against him under Section 323, I.P.C. is reduced to rigorous imprisonment for three months with payment of Rs. 500A in default to suffer rigorous imprisonment for one month. Conviction and sentence against Haladhar Barman is maintained. (23) Thus the appeal is allowed in part. (22) So far as Kandura is concerned sentence as against him under Section 323, I.P.C. is reduced to rigorous imprisonment for three months with payment of Rs. 500A in default to suffer rigorous imprisonment for one month. Conviction and sentence against Haladhar Barman is maintained. (23) Thus the appeal is allowed in part. The judgement and order of the learned Trial Court is upheld subject to the modification of the sentence with respect to the appellant Kandura. (24) That two appellants who are on bail shall surrender before the learned Trial Court within a month from the date of the order to serve out the sentence subject to the provision of Section 428, Cr.P.C. If they fail to appear within the time frame as above the Learned Trial Court will take appropriate steps for their apprehension so as to have the sentence executed in accordance with the law. (25) A copy of this judgment along with the LCR shall be transmitted to the learned trial Court.