This appeal is directed against the judgment and order dated 5.12.1995 passed by the learned Sessions Judge, South Tripura, Udaipur in Sessions Trial No. 54 (ST/U) of 1995 whereby learned Sessions Judge convicted the present appellant for commission 6f the offence under section 304 Part II of IPC and sentenced him thereunder to suffer 5 (five) years rigorous imprisonment and also to pay a fine of Rs.10,000/- in default of which he is to suffer a further period of 2 (two) years rigorous imprisonment. 2. I have heard Mr. PC Das, learned counsel appearing on behalf of the appellant and Mr. S. Das, learned Public Prosecutor appearing on behalf of the respondent. 3. Shorn of details, the prosecution case is as follows : On 6.7.93 informant Shri Shy amal Das (PW15) submitted a written ejahar to OC, RK Pur PS alleging, inter alia, that on 5.7.93 at about 6.30 PM his father was assaulted by the appellant Samir Das with some lathi and a consequence of that violent beating his father died on 5.7.93 at about 2.30 O' Clock in the night. It was also alleged that there was some dispute between the deceased and the appellant centering an incident which took place in respect of grazing of paddy by goats in a paddy field. 4. On receipt of this written complaint OC, RK Pur PS filled up the prescribed form of FIR and registered a case being RK Pur PS Case No.6(7)/93 under section 302 read with section 34 of IPC. OC Sri Dipangshu Ranjan Majumder (PW 17) himself took up investigation of the case and in course of his investigation he visited the place of occurrence, prepared hand sketch map with separate index, visited Tripura Sundari Hospital where the deceased was already removed and he also got the inquest report prepared by AST, Nani Gopal Dey. During his investigation OC, Shri Majumder recorded the statements of the witnesses under section 161 of CrPC and after obtaining post mortem examination report, submitted charge sheet for prosecution of the appellant under section 302 of IPC. 5. The appellant who surrendered before the learned Chief Judicial Magistrate, South Tripura, Udaipur was remanded to judicial custody and thereafter the learned Chief Judicial Magistrate committed the case to the Court of learned Sessions Judge, South Tripura, Udaipur. 5. The appellant who surrendered before the learned Chief Judicial Magistrate, South Tripura, Udaipur was remanded to judicial custody and thereafter the learned Chief Judicial Magistrate committed the case to the Court of learned Sessions Judge, South Tripura, Udaipur. Accordingly learned Sessions Judge, after perusal of the records, framed acharge under section 302 of IPC against the appellant for having committed the offence of murder by killing Amuly a Das in Jamjuri Market in between the night of 5.7.93 and fr.7.93 at about 6.30 PM. 6. In order to bring home the charge the prosecution examined 18 witnesses in all and also took the aid of documentary evidence, namely, seizure list, inquest report, hand sketch map, post mortem examination report etc. The accused led no evidence in support of his defence. However, his defence as would appear from the trend of cross-examination as well as the statement he gave at the time of his examination under section 313 of CrPC is that a false case was foisted against him out of previous enmity. 7. Learned Sessions Judge, after appreciation of the evidence, particularly the evidence of PW 2 made the finding that the accused committed the offence under section 304 Part II of IPC and accordingly he convicted the appellant and awarded the sentences as already mentioned above. 8. Mr. PC Das, the learned counsel appearing on behalf of the appellant has urged 5 contentions, namely, (1) learned Sessions Judge failed to make a proper charge; (2) failure on the part of the learned Sessions Judge to record the evidence in accordance with the provisions of law; (3) evidence of the eye witnesses which runs counter to the medical evidence deserved to be rejected; (4) failure on the part of the learned Sessions Judge to follow the procedure of section 145 and 154 of the Evidence Act and (5) examination of the accused under section 313- of CrPC was not done as per the intention of the provision. 9. I shall consider these contentions seriatim. But before entering into the contentions canvassed at the Bar by learned counsel for the appellant, it is necessary to mention here that Mr. Das, the learned counsel for the appellant did not raise any dispute that the deceased Amuly a Das died on the night of occurrence due to the injuries he sustained on his person. Mr. But before entering into the contentions canvassed at the Bar by learned counsel for the appellant, it is necessary to mention here that Mr. Das, the learned counsel for the appellant did not raise any dispute that the deceased Amuly a Das died on the night of occurrence due to the injuries he sustained on his person. Mr. Das, the learned counsel for the appellant has submitted that in view of the infirmities the sentences should, atleast, be modified and since the appellant is still in jail the sentences may be converted to the period already undergone by the appellant. 10. On going through the judgment and the evidence, Mr. S. Das, the learned Public Prosecutor has also submitted that the learned Sessions Judge did not follow the procedure as laid down under sections 145/154 of the Evidence Act at the time of recording the evidence of the witnesses. 11. The prosecution case is that the occurrence took place on 5,7.93 in Jamjuri Market at about 6.30 PM and soon after the occurrence deceased Amulya Das was removed to Tripura Sundari Hospital where he died. PW 14 Dr. Goutarn Roy Choudhury who conducted autopsy on the dead body of the deceased deposed that he conducted autopsy on the dead body of the deceased on 6.7.93 at 1.15 PM and during his examination he found the following injuries: (1) Lacerated wound with depressed fracture over vault of skull which was 3"x3"x2" in size; (2) A lacerated wound over lateral aspect of left elbow having 2"x2"x1/2" in size; (3) There was an abrasion on the right cheek; (4) The bleeding on nose and mouth was found. 12. The doctor proved his report which is marked as Ext P2. It has also been stated by the doctor that it was homicidal and the injuries were caused by blunt weapon. 13. Now the vital question which is to be determined is whether the appellant is responsible for causing the death of deceased Amulya Das and whether in view of the infirmities pointed out by learned counsel for the appellant the appellant is entitled to get an order of acquittal. 14. 13. Now the vital question which is to be determined is whether the appellant is responsible for causing the death of deceased Amulya Das and whether in view of the infirmities pointed out by learned counsel for the appellant the appellant is entitled to get an order of acquittal. 14. The first infirmity as pointed out by learned counsel for the appellant is that learned Sessions Judge failed to make a proper charge as a bare look to the charge would show that learned Sessions Judge was not quite sure when the occurrence had actually taken place. Learned Public Prosecutor has quite fairly submitted that the FIR very clearly indicates that the occurrence took place on 5.7.93 at about 6.30 PM. Therefore, there was no reason why the learned Sessions Judge while framing the charge mentioned that the appellant committed the crime of murder in between 5.7.93 and 6.7.93 at about 6.30 PM. The verbatim words as found in the charge may be quoted as under: "... that you on in the night between 5.7.93 and 6.7.93 at about 6,30 PM committed the murder of Amulya Das ..." I really fail to understand how the charge could be framed in this fashion. The evidence which the learned Sessions Judge recorded during trial also clearly shows that the occurrence took place on 5.7.93 at about 6.30 PM. Therefore, in view of the evidence it must be said that the time mentioned in the charge about, the factual part of the occurrence was not properly recorded. 15. The next point of criticism advanced by learned counsel for the appellant is that the learned Sessions Judge completely ignored the provisions of section 154 of the Evidence Act at the time of permitting the Public Prosecutor to examine some of the PWs in the nature of cross-examination. I find sufficient force in the contention of learned counsel for the appellant as on going through the evidence of some PWs, particularly the evidence of PWs 3,4,5 and 7,1 find that learned Sessions Judge completely failed to appreciate the provisions of section 154 of the Evidence Act. It may, therefore, be advantageous to quote section 154 of the Evidence Act which reads : "154. Question by party to his own witness. It may, therefore, be advantageous to quote section 154 of the Evidence Act which reads : "154. Question by party to his own witness. The Court may, in its discretion, permit the person who calls a witness to, put any questions to him which might be put in cross examination by the adverse party." 16. A perusal of this provision makes it quite clear that this section allows a party, :with the permission of the Court at its discretion, to cross-examine his own witness in the same way as the adverse party. Ordinarily, a party calling his witness is not allowed to ask him these questions but this ordinary rule is relaxed in this section. The purpose of such relaxation is only to find out if the witness is one of truth and can be relied on, because cross-examination is the most powerful and effective instrument for bringing out and testing the truth. It has, therefore, been submitted that before permitting the prosecution to examine the witness in the nature of cross-examination it has to be shown that the witness has resiled from the statement made by him during investigation. I am in complete agreement with this view as unless and until prosecution succeeds in making of it a case that a particular witness has resiled from the position taken during investigation he cannot be permitted to be cross-examined. What I would like to emphasise is that the prosecution must lay foundation for examining his own witness in the nature of cross-examination and if the Court finds from the demeanour, temper, attitude, inconsistent statements or otherwise, the leave should be granted, the Court should readily grant the permission at any stage of the examination of the witness. But in the instant case on going through the evidence of the aforesaid witness I find that learned Sessions Judge completely ignored this provision. To make it clear it may be shown what learned Sessions Judge recorded during examination of PW 4. The statement of PW 4 which was recorded before permitting the prosecution to cross-examine the witness reads as under: "I have got a shop in Jamjuri Market. About two years back there was an assault in the market but I do not know who have assaulted and who was assaulted. I made a statement to the police on this incident." 17. About two years back there was an assault in the market but I do not know who have assaulted and who was assaulted. I made a statement to the police on this incident." 17. After recording the above portion of the statement of the witness learned Sessions Judge allowed the prosecution to cross-examine the witness. How the learned Sessions Judge was satisfied to permit the prosecution to cross-examine this witness is not at all recorded ? The deposition sheet does not indicate that learned Sessions Judge took the pains to go through the statements of the witnesses recorded under section 161 of CrPC. Not only this, there must be some statement of the witness which would indicate his resiling from his stand made during investigation. It is incumbent upon the Presiding Officer of the Court to record that on going through the statement under section 161 of CrPC it was found that the witness resiled from his original stand and that is why he has permitted the prosecution to examine the witness in the nature of cross-examination. Such an order may be recorded even in the deposition sheet in a separate paragraph or it may be recorded in the order sheet. But what I would like to emphasise is that the prosecution must lay a foundation for cross examining his own witness. The mere presentation of a application to the Court that a witness has been won over by the other side is not conclusive of the question that the witness has been won over. 18. The next infirmity which has been urged before me by learned counsel for the appellant is that the learned Sessions Judge completely ignored section 145 of the Evidence Act while recording the evidence of the eye witnesses. On going through the evidence of PW 1, Nihar Ghosh I find that during cross-examination it was elicited from this witness that he did not make any statement to the Investigating Officer that he saw a number of persons running from South to North at that time. To some other suggestions this witness stated as under : "It is not a fact that I have not stated to police that Amulya Das was running from South to North in that market. These particular words are not found in the statement under section 161 of CrPC. To some other suggestions this witness stated as under : "It is not a fact that I have not stated to police that Amulya Das was running from South to North in that market. These particular words are not found in the statement under section 161 of CrPC. It is not a fact that I have not stated to police that Samir Das gave three blows- one on the head of Amulya and two on his back. No such words are found in the statement recorded under section 161 of CrPC." 19.1 must say that learned Sessions Judge completely lost sight of the provisions of section 145 of the Evidence Act. If any statement is not found in the statement which a particular witness made during examination under section 161 of CrPC then it is intended by section 145 of the Evidence Act to contradict the witness by the writing ie his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. But before drawing his attention to the statement recorded under section 161 of CrPC it is not proper to record that such statement or words were not found in the statement he made during his examination under section 161 of CrPC. The correct procedure to be followed is to draw the attention of the witness to that part of the contradictory statement which he made before the police and question him whether he did, in fact, make the statement. If the witness admits having made the particular statement to the police, that admitted portion will come into evidence and will be recorded and that part of the evidence of the witness can be relied on. However, if on the otherhand the witness denies to have made such statement before the police the witness has to be confronted with particular portion of the statement and then it should be marked and when Investigating Officer comes in the witness box he should be questioned as to whether this particular statement was made to him during the course of investigation by that particular witness. The answer of the Investigating Officer in the affirmative will prove his statement. The answer of the Investigating Officer in the affirmative will prove his statement. It may also be mentioned that the witness who has been confronted with his previous statement for the purpose of contradiction must be given an opportunity of explaining any apparent discrepancies. But in the instant case on going through the evidence of PWs 1 and 2 find that learned Sessions Judge did not follow the correct procedure. 20. The forth infirmity pointed out by learned counsel for the appellant is that the evidence of the eye witnesses run counter to the medical evidence. PW 2 depose that the appellant and his companies struck blows on the person of the deceased Amulya Das. Therefore, learned counsel for the appellant wants to emphasise that the doctor's evidence ie the PM Examination Report will show that there were virtually two injuries-one on the head and one on the lateral aspect of left elbow. According to him PW 1 deposed that the appellant struck successive blows on the head of Amulya Das but the medical report will show that there was only one blow on the head. Moreover the evidence of PW 2 that the deceased was assaulted not only be appellant but a few others. Mr. Das, the learned counsel for the appellant has, therefore, argued that learned Sessions Judge while appreciating the evidence of PW 2 did not deal with this aspect that this PW also made her statement in the examination-in-chief that deceased was assaulted not only by the appellant but by a few others also. The relevant portion of the evidence of this witness (PW 2) may be extracted as under: 'Thereafter I have seen that Amulya was encircled by Samir Das and his companies and Samir gave a blow on the head of Amulya and Amulya fell down. The companions of Samir Das gave some blows to Amulya even thereafter....," It is, therefore, clear form the above quoted statement of PW 2 that the deceased was beaten not only by the appellant but also by his companies. 21. Now in this context the evidence of the doctor has to be examined. The doctor (PW 14) stated in his cross-examination that there was no possibility of instant death of the recipient of the first two injuries. 21. Now in this context the evidence of the doctor has to be examined. The doctor (PW 14) stated in his cross-examination that there was no possibility of instant death of the recipient of the first two injuries. He also stated in his cross-examination that the second injury could be received after a person fell down on the ground on receipt of the first injury. The evidence of the doctor does not show that the injuries found on the person of the deceased were sufficient in the ordinary course of the nature to cause the death. Learned Sessions Judge mainly placed reliance upon the evidence of PW 2 to arrive at the conclusion that the deceased committed the offence under section 304 Part II of IPC. But from the evidence of PW 2 it is clear that the appellant gave only one blow on the head of the deceased. The doctor's evidence does not show that the blow was enough for causing the death of the deceased. The evidence of the doctor is virtually silent on this aspect. I think, learned Sessions Judge in invoking the provisions of section 165 of the Evidence Act could get the clarification from the doctor. But without ascertaining this aspect of the case he jumped to the conclusion that the appellant committed the offence under section 304 Part II of IPC. Section 304 of IPC provides the punishment for culpable homicide not amounting to murder, and draws the distinction in the penalty to be inflicted, where an intention to kill being present, the act would have amounted to murder, but for its having fallen without one of the Exceptions to section 300, and those cases in which the crime is culpable homicide not amounting to murder, that is to say, where there is knowledge that death will be a likely result, but intention to cause death or bodily injury likely to cause death is absent. The second part of that section is to be read with the last few words of section 299 and has no reference to section 300 or to the Exceptions therein, and must not be confused with culpable homicide not amounting to murder. 22. The learned Sessions Judge did not make any finding that accused had the knowledge that he was likely to cause such bodily injury as was likely to cause the death. 22. The learned Sessions Judge did not make any finding that accused had the knowledge that he was likely to cause such bodily injury as was likely to cause the death. The doctor's evidence as discussed above will show that there was no statement by the doctor that the injuries he found on the person of the deceased were sufficient in the ordinary course of nature to cause the death of the deceased. Apart from that it was elicited from the doctor during cross-examination that there was no possibility of instant death of the recipient of the first two injuries. In view of this clear statement it can be safely inferred that the injury No. 1 was not sufficient for causing the death. 23. Therefore, in view of the evidence discussed above I hold that the offence committed by the appellant may, at best, be one under section 325 of IPC. The conviction of the appellant is accordingly converted to one under section 325 of IPC and in view of the facts, circumstances and infirmities pointed out above I reduce the sentence to the period already undergone by the accused-appellant. 24. The accused-appellant be set at liberty forthwith. Copy of this judgment be sent to all the Sessions Judges/Additional Sessions Judges.`