The prosecution case as portrayed on the face of written complaint is that on 22.09.2007 at about 4 p.m. the cock and hens of the accused persons allegedly had damaged the thatches of kitchen of one Tahera Khatoon wife of late Samirul Haque, hereinafter called the de-facto complainant, situated at Khemcharan Ganch within Chopra Police Station and when she was driving those hens and cocks therefrom the accused Jarifa Khatoon abused the de-facto complainant using filthy languages which said Samirul Haque raised objection.At the very moment, the accused Amirul Haque assaulted said Samirul on his head and in the right hand with a bamboo stick 3 and the accused Jarifa Khatoon caught hold the testis (Andokosh) of Samirul with pressure.As a result, he fell down senseless on the ground.Thereafter, he was shifted to the Islampur hospital for treatment but the doctor referred him to North Bengal Medical College for better treatment but on the way he died near Ramganj Bus Stand.On the basis of the written complaint, the Police started the Chopra P.S. Case No. 136/07 dated 23.09.2007 against the accused persons as mentioned in the cause title punishable under Section 304/34 of IPC and the same was endorsed to one S.I. of Police namely, Sanat Kr.Ghosh for investigation who after completion of the investigation, submitted Charge-sheet No. 170/07 dated 22.11.2007 under Section 304/34 of IPC against both the accused persons, the appellants herein.The learned Sessions Judge framed charge under Sections 304/34 of the Indian Penal Code to which the appellants abjured their guilt and claimed a trial.After completion of examination of as many as 07 witnesses by the prosecution, the appellants were examined under Section 313 of the Criminal Procedure Code in respect of incriminating material emerging from the evidence to which they declined to adduce defence witness.Upon hearing the prosecution and defence the Trial Judge convicted appellant Amirul Haque was sentenced to suffer for a term of five years and to pay a fine of Rs. 10,000/- (Rupees ten thousand) 4 in default to suffer further R.I. for one year, however, the appellant Jarifa Khatoon was sentenced to suffer RI for a term of three years and to pay a fine of Rs. 5000/- (Rupees five thousand) in default to suffer further R.I. for one year for the charge under Section 304(II) of the Indian Penal Code This is the judgment impugned under appeal preferred by the appellants, inter alia, on the grounds that the learned trial Judge failed to appreciate the discrepancies in the evidences laid by the prosecution as there are contradictory evidences between the witnesses which ought to have been considered by the learned trial Judge to hold that there was reasonable shadow of doubt.Mr. Ayan Basu, learned Advocate appearing for the appellants pointed out that the learned trial Judge failed to consider that the deceased was sent to Islampur hospital but the doctor referred to the deceased for better treatment at North Bengal Medical College at Siliguri and on the way he died.Dr. Sanjay Dey, PW 7 was Medical Officer posted at Islampur SD hospital on 24.9.2007 who held post mortem on the dead body of the deceased and found on examination(i) blood stained discharged from mouth and nose; (ii) linear bruise of 2" over right arm and another bruise of 1" over left side 1.5" of orbit of the eyes; (iii) swelling over right parietal region and left fronto temporal region of scalp;(iv) intra cerebral hemorrhage over the said areas; (v) mild scrotal swelling over right testis but no hematoma seen.5 In the opinion of doctor Sanjoy Dey, PW 7 as per P.M. Report, Exhibit- 4 the cause of death was due to subdural and intra cerebral hemorrhage over the area of scalp.Mr. Basu submits that during cross-examination the PW 7 has clearly stated on oath that there was no fracture injury sustained by the deceased anywhere else on the body and the injury of hematoma could be the cause of injury but the injury described in the PM Report might be due to various other caused.But evidence in cross- examination of PW 7 has not been appraised by the learned trial Judge.Mr. Basu has relied on a decision in the case of K.Rmakrishnan Unnithan vs. State of Kerala reported in 1999 Supreme Court Cases (Cri.) 410 to argue that the question then remains for consideration is whether on the materials on record can it be said that the appellants gave the blow on the deceased with the intention of causing murder of the deceased so as to be convicted for the charge under 304(II)/34 IPC.In the cited decision considering the eye witness account of the three eye witnesses and that of the doctor conducting Autopsy and in considering the nature of injury inflicted on the body of deceased with a part of the intestine protruding out due to stab on the abdomen of the deceased with the knife the Hon'ble Supreme Court held that the accused did not commit the offence under Section 302 IPC but under part II of Section 304 IPC and 6 accordingly, the conviction of the appellants under Section 302 IPC was set aside and instead convicted him under Section 304(II) IPC and the appellant/ accused period of sentence under gone was treated as the sentenced imposed upon the appellant of the cited decision.In second fold argument Mr. Basu submitted that IO who conducted the investigation was not examined and the doctor of Islampur hospital who referred the patient party to North Bengal hospital for better treatment has also not been examined and no medical report of Islampur hospital was produced.It is also submitted that Safirul PW 2 who deposed on the basis of learning about the incident has learnt that on the relevant date of incident quarrel between Samirul and Amirul had taken place in which Amirul assaulted Samirul with the help of a bamboo stick which was on the issue of hen of Amirul which has damaged the roof of Tahera.It is submitted that the evidence of PW 2 is hearsay but I find that PW 2 has categorically stated that he had appeared between Samirul and Amirul and he separated them when they were fighting.In cross- examination PW 2 stated that when he was proceeding towards local market the dispute had cropped up between Jarifa and Samirul which took place at 4 P.M. as Samirul had caught hold hair of Jarifa who had become unconscious and referred to hospital and other members of the family of Jarifa when Amirul was not there.In cross- examination PW 2 stated that at the time of quarrel several villagers 7 were present and out of them some of villagers tried to rescue Jarifa from the clutch of Samirul and there was some sought of scuffling between villagers and Samirul.The dispute between Samirul and members of family of Jarifa and Amirul took place for couple of hours and he had learnt about the assault on Samirul inflicted by Amirul from one Akbar who happened to be the cousin brother of Amirul.This witness has testified the fact that Amirul accompanied said Samirul to admit him in the hospital, admittedly, Samirul was sick person suffering from various ailments.Mr. Basu submitted that this witness has not been declared hostile by the prosecution.So his version has to be accepted as the independent witness.It is also submitted that Amirul Haque the appellant is the full brother of the deceased Samirul and brother-in-law of the appellant Jarifa Khatoon and fact remains that over petty dispute between them was over the issue of damage of the thatched roof of the deceased, the deceased Samirul was injured by the appellant Amirul by blow on his head with a bamboo stick.I am of the view that though the IO who held investigation and the doctor of Islampur hospital who referred the deceased to North Bengal Medical Collage hospital were not examined, nevertheless, prosecution case cannot be doubted and their non examination is not also prejudicial to the appellants.PW 3 is also an independent witness whose evidence is hearsay and was declared hostile.PW 4 a seizure list witness could not say how the deceased died but he is a witness to seizure of a bamboo stick which was used as a weapon to beat the deceased.PW 5 Mr. Soleman has proved the written complaint scribed by him on the basis of version of Tahera Khatoon which finds corroboration by its maker Tahera.PW 6 father of PW 1 is a witness to the inquest report in respect of the inquest held on the deceased Samirul who has deposed about the injured being shifted to the hospital and death during the treatment.According to him the dead body was brought back to the house from the hospital for burial but Tahera Khatton wife of the deceased did not allow the dead body to be buried.PW 8 is the Inspector of Police who had drawn up the formal FIR on the basis of the complaint and endorsed the investigation to SI Sanat Kr.Ghosh and the latter held investigation but SI Ghosh could not be availed of for his examination but PW 8 has substantially proved the FIR, sketch map with explanatory index of the place of occurrence Exhibit- 6 and the seizure of weapon under Seizure list Exhibit-1, inquest report Exhibit-2, dead-body Challan Exhibit-7 and Exhibit- 8 for the collection of the PM report from the hospital. 9Mr. Basu further refers to a decision in the case of Raja Ram vs. State of Rajasthan reported in 2005 Supreme Court Cases (Cri.) 1050-- to argue that PW 2 did not support the prosecution case as he was not declared hostile as I have discussed above that PW 2 is an eye witness to the occurrence of assault on Samirul by Amirul with the help of a bamboo stick.There was no reason for declaring him hostile by the prosecution.In the cited decision it was held that if the dying declaration passes the test of scrutiny it can be relied on as the sole basis of conviction.Though, there appears exaggeration in the evidence of PW 2 during cross- examination when he deposed that the quarrel was due to holding of locks of hair of Jarifa by Samirul and for that Jarifa fell unconscious and was referred to hospital by her family members in a rickshaw van and that several villagers present at the scene tried to rescue Jarifa from the clutch of Samirul and there was some short of scuffling between the villagers and Samirul.PW 2 learnt about the assault by Amirul upon Samirul from one Akbar who happens to be their cousin brother but substantially his version supports the prosecution case.The facts scenario as reflected from the prosecution case is that in the mids of quarrel incident took place between the two full brothers and the appellants did not flee-away from the spot rather evidence on record in unequivocal term points 11 out that Amirul took his injured brother Samirul to hospital for treatment.This is undoubtedly a mitigating circumstance to hold that the assault on Samirul by Amirul was not with an object to kill his brother Samirul rather on being provoked on certain trifle issue, the appellant Amirul gave blow on the head of Samirul who ultimately succumbed to hematoma injury on his head as he was admittedly a sick person.In regard to appellant Jarifa as I have found injury on the scrotum in the right testis of the deceased which in my opinion was of simple in nature.

Cited provisions: Section 304 in The Indian Penal Code; Section 34 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 149 in The Indian Penal Code; Section 323 in The Indian Penal Code