A. M. BHATTACHARJEE, AG. C. J. ( 1 ) THE learned Additional Sessions Judge has convicted the accused under Section 304, Indian Penal Code and has sentenced him to 4 years rigorous imprisonment. But having heard Mr. K. Bhutia, the learned counsel for the appellant and the learned Advocate-General appearing for the State, I am satisfied that on the evidence on the record, the case would not attract the provisions of Section 304 or even Section 325. ( 2 ) THE prosecution case is that the accused-appellant, a Government Jeep Driver, having been annoyed with the deceased, an employee of a road-side tea-stall, on account of the latter making some delay in serving the tea and also spilling over some tea on the body of the accused while serving the same, gave him blows and also a kick as a result of which the deceased fell down on the ground and became restless. The accused then himself took the deceased to the hospital in his jeep for necessary medical treatment, but the latter ultimately died in the hospital. ( 3 ) AS is not unusual, there are some discrepancies, though not vital, as to the number and nature of blows hurled by the accused, whether one or two slaps, whether a fist-blow in addition or at all; but it may be noted that the accused himself, in his statement under Section 342, far from denying the assaults, has, with unusual fairness, stated more than once that he gave the deceased one slap and one kick, but no other blow at all. The slap or slaps, according to P. Ws. , were on the face, but as to the kick, the P. Ws. would put it as being hurled at the lower portion of the victim's body, while the accused in his statement has stated the same to have been hurled on the right calf of the deceased. The right calf being obviously a lower portiont of the body, there should be no difficulty in accepting the version of the accused as the kick having been hurled on the right calf. In fact, in view of the straightforward manner in which the accused has admitted the hurling of blows and the discrepancies, however slight, as to the number and nature thereof in the evidence of the P. Ws. In fact, in view of the straightforward manner in which the accused has admitted the hurling of blows and the discrepancies, however slight, as to the number and nature thereof in the evidence of the P. Ws. , it would be safer to accept the version of the accused that he gave one slap on the face and one kick on the right calf of the deceased. ( 4 ) THE deceased has no doubt died, but can it be said that the accused caused culpable homicide as defined in Section 299 by his slap and kick to warrant his conviction under Section 304? As has been expressly defined in Section 299, and as has been repeated for about a century and more, a homicide, howsoever caused, is not culpable, unless death is caused by an act - (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that such act was likely to cause death. By hurling a slap on the face and a kick on the calf, one cannot be said to have intended to cause death of the victim, or such bodily injury as is likely to cause his death, or to have the knowledge that such act is likely to cause his death, unless the victim was a baby in-the-arms, or was known to the assailant to suffer from serious physical disorder, disease or infirmity. It may be, as would be indicated hereunder, that the victim in this case was under some such disorder, disease or infirmity, but there is nothing to suggest, nor it is the prosecution case, that the accused could know about the same. ( 5 ) THE inquest and the post-mortem reports clearly rule out any external or internal injury and that is also the evidence of the Doctor. P. W. 6, who held the post-mortem. And that should take out the case out to Section 325. Because in order to amount of an offence of voluntarily causing grievous hurt punishable under Section 325 two things, as provided under Section 322, must concur, namely - (a) the offender must have intended to cause or must have known himself to be likely to cause grievous hurt, and (b) actual causing of the grievous hurt. Because in order to amount of an offence of voluntarily causing grievous hurt punishable under Section 325 two things, as provided under Section 322, must concur, namely - (a) the offender must have intended to cause or must have known himself to be likely to cause grievous hurt, and (b) actual causing of the grievous hurt. In the case at hand, from the hurling of the slap on the face and the kick on the calf, the accused neither can be said to have intended to cause or to have known himself to be likely to cause any grievous hurt nor there is any evidence that any grievous hurt, as defined in Section 320, has in fact been caused. And as already noted, the medical evidence has clearly negatived any injury, external or internal, having been caused to the deceased. It may also be noted that it has come out from the; evidence of P. W. 4, the tea-stall owner and the deceaseds employer who witnessed the occurrence, that the entire incident including the assault was such that one person present there thought that the deceased was making a show only (acting gardaichhat1 ). ( 6 ) THE Doctor, P. W. 6, has also nowhere stated that the manner in which the deceased died could suggest that the same could be caused by a slap on the face and a kick on the calf. The Doctor has, however, stated that because of water and watery froth in the pharynx, larynx and oesophagus and also because of the tongue being fallen back in the mouth, he concluded that the respiratory organ of the victim was obstructed leading to asphyxia. The Doctor has stated further that it is true that sometimes epileptic patient also dies out of the falling back of their tongue and that it is true that when epileptic patients are in fits, froth do come from their mouth. We do not know whether the deceased was epileptic and whether he died because of his suddenly running into epileptic fit. Atleast the accused has no reason to know, nor the prosecution suggests that the accused knew, that the deceased had any such disorder, disease or infirmity. I wish the Doctor was examined by the parties or the Court with greater care. ( 7 ) ONE thing about the Inquest and the Post-Mortem Reports-Ext. P-6 and Ext. P-2. Atleast the accused has no reason to know, nor the prosecution suggests that the accused knew, that the deceased had any such disorder, disease or infirmity. I wish the Doctor was examined by the parties or the Court with greater care. ( 7 ) ONE thing about the Inquest and the Post-Mortem Reports-Ext. P-6 and Ext. P-2. In the former, the wearing on the deceaseds body have been described as- (1) one white shirt and (2) one khaki colour long pant, while in the latter, those have been described as- (1) one dirty brown shirt and (2) one light blue pant. The discrepancies have not been explained and might have prevented me from accepting the contents of the Reports with reasonable certainty. But as no injury, whether external or internal, have been noted in either of the Reports and the hurling of the slap and the kick and the death of the victim have been proved even without any challenge from and on behalf of the accused, this need not detain me. ( 8 ) EVEN though death has resulted, the act which has caused or accelerated death would not necessarily be culpable homicide, whether amounting or not amounting to murder. If all that can be said is that the accused intended to cause or knew that he was likely to cause hurt only, then notwithstanding the occurrence of death, he would only be committing-an offence of voluntarily causing hurt within the meaning of Section 321 and would be punishable under Section 323. ( 9 ) AS I have already stated, death was not and could not be the probable consequence of the acts of the accused. I have also noted that immediately after the occurrence, the accused himself took the victim to the hospital in his jeep. I have also noted that even at the trial the accused has not hesitated to confess, and has in fact confessed, that he gave a slap to the victim on his face and a kick on his calf and has not also made any remote attempt to raise any case of altercation or a plea of private defence. The accused has also unhesitatingly admitted in his statement that P. W. 2, one of the important eye-witnesses deposing against him, was present on the scene and witnessed the occurrence. The accused has also unhesitatingly admitted in his statement that P. W. 2, one of the important eye-witnesses deposing against him, was present on the scene and witnessed the occurrence. The cumulative effect of all these has persuaded me not to inflict the maximum punishment prescribed under Section 313, even though I cannot but sincerely regret the sad death of the unfortunate deceased. I, therefore, set aside both the conviction of and the sentence imposed on the accused under Section 304 Indian Penal Code and find the accused guilty under Section 323 Indian Penal Code and, while convicting him thereunder, I sentence him to undergo rigorous imprisonment for six months. Appeal partly allowed. --- *** --- .