( 1 ) THIS criminal appeal is directed against the judgment and orders of conviction and sentence passed by the Addl. Sessions Judge, 2nd Court, Nadia in sessions trial No. 1 of July, 1998. The appellant was tried by the trial Court on a charge framed under S. 302, IPC but on trial the trial Court convicted the appellant-accused under Section 304, Part I, IPC for causing the death of Narugopal Biswas and sentenced him to rigorous imprisonment for 9 years and also a fine of Rs. 2,000/- i. d. to R. I. for six months. Being aggrieved by the orders of conviction and sentence passed by the trial Court the appellant-accused has preferred the present appeal. ( 2 ) THE prosecution case in short is that on 18th June, 1993 at about 6 p. m. the accused Ranjit Das hit the victim Narugopal Biswas on his head with a wooden pole as a result of which Narugopal sustained injury and was admitted to hospital on that very day and ultimately he succummbed to his injury at the hospital on 20-6-93 at about 10 a. m. The FIR which has been proved in this case by the prosecution is Ex. 1 that was lodged by P. W. 1, Raghunath Biswas, the father of the victim Narugopal. The said FIR was written and signed by P. W. 4 Sunil Biswas and it was also signed by P. W. 1 Raghunath Biswas, the informant. It was lodged at 1-25 p. m. on 20-6-93 on which date the victim Narugopal expired in the hospital. The said FIR was written and signed by P. W. 4 Sunil Biswas and it was also signed by P. W. 1 Raghunath Biswas, the informant. It was lodged at 1-25 p. m. on 20-6-93 on which date the victim Narugopal expired in the hospital. In the FIR it is stated by the P. W. 1 Raghunath Biswas that there was an altercation between his second son Gour Biswas and Ranjit Das (accused) 15 days prior to the incident and as a sequel thereto on 18-6-93 at about 6 p. m. the aforesaid Ranjit Das along with four others named in the FIR came to his house and called his son Gour and immediately his eldest son Narugopal came out and there was an altercation between Narugopal and the aforesaid persons for a few minutes and the accused Ranjit Das assaulted on the head of Narugopal with a wooden pole and then the victim was taken to Saktinagar Hospital and admitted there but he died in the said hospital on 20-6-93 at about 10 a. m. It is further stated in the said FIR that in order to make arrangement for treatment of his son he could not lodge a written complaint in due time. It may be noted here that the informant Raghunath Biswas, the father of the deceased is not eye witness to the occurrence. He (P. W. 1) says in his evidence that he is a driver by profession and on the relevant day he was not at home and when he came back home he learnt about the incident. In his cross-examination he says that he came to his house one day after the incident of assault on his son Narugopal by Ranjit Das. He says that his son Narugopal died two days after the date of assault. In his examination-in-chief he has also spoken of the incident of assault on Narugopal by Ranjit. Evidently, his evidence on that aspect is a hear say evidence because he was not present at the time of incident and he came to learn about the incident when he returned home next day. However, as we have seen, he lodged the FIR (Ext. 1) and it is his evidence that he also produced the wooden pole (Ext. Evidently, his evidence on that aspect is a hear say evidence because he was not present at the time of incident and he came to learn about the incident when he returned home next day. However, as we have seen, he lodged the FIR (Ext. 1) and it is his evidence that he also produced the wooden pole (Ext. I) with which his son was assaulted, to the Darogababu who seized the same under a seizure list on which he put his signature. In cross-examination it is suggested to P. W. 1 on behalf of the defence that his son Narugopal along with others went to assault the brother of Ranjit Das over taking of bidi and that Narugopal and his friends tried to assault Ranjit Das and Ranjit Das was somehow able to save himself from the clutches of the friends of Narugopal which however he denies. P. W. 2 Sadhan Mondal says that Narugopal died on 20-6-93 and the occurrence took place on 18-6-93. He says that he was near the Togbogia Bridge at about 6 p. m. and on hearing a shouting he rushed to the P. O. which was by the side of the house of Raghunath Biswas and he found that Narugopal was lying on the ground with bleeding injuries on his head and he came to learn from Sunil Biswas, Basudev, Kamala and Binoy that one Ranjit Das had assaulted Narugopal with a wooden pole on his head. He says that he along with other persons took away Narugopal to a doctor at Asannagar and subsequently he was forwarded to Saktinagar District Hospital. It has been submitted on behalf of the appellant that no doctor of Asannagar who might have attended Narugopal as said by the witness, has been examined in this case. In his cross-examination P. W. 2 says that the P. O. was stained with blood. He further says in his cross-examination that he along with Sunil and Kamala went to the local P. S. . after keeping Narugopal at the Saktinagar Hospital. He also says that they narrated the incident before the police. He further says that Sunil Biswas signed his name and Darogababu wrote down the statement of Sunil Biswas. He says that he disclosed the names of Mono Das and Utpal Das before the police that they were accompanied by Ranjit Das. after keeping Narugopal at the Saktinagar Hospital. He also says that they narrated the incident before the police. He further says that Sunil Biswas signed his name and Darogababu wrote down the statement of Sunil Biswas. He says that he disclosed the names of Mono Das and Utpal Das before the police that they were accompanied by Ranjit Das. He however says in his cross-examination that he did not see Ranjit Das sustaining any injury. It has been suggested to him on behalf of the defence that no incident took place in the manner, place and time as stated by him which however he denies. It has also been suggested to him on behalf of the defence that he along with others had been to the house of Ranjit Das for assaulting him and his brother and that the friends of Ranjit Das had resisted Narugopal from assaulting Ranjit Das which however he denies. The defence suggestion itself would show thus that there was an incident in which both Narugopal and Ranjit were involved on that date. It has been also very forcefully contended on behalf of the appellant that the evidence of P. W. 2 Sadhan Mondal clearly shows that one FIR was lodged at the P. S. on 18-6-93 but that has been suppressed in the case and instead a subsequent FIR lodged on 20-6-93 has been produced in Court which is not permissible under law and that being so the whole prosecution case becomes exposed to grave suspicion. In this connection the learned Advocate for the appellant refers to the decision of the Supreme Court in Sevi v. State of Tamilnadu, AIR 1981 SC 1230 : (1981 Cri LJ 736 ). The allegation of the accused in that case was that the original FIR was suppressed by police officer and was substituted by another. The Sessions Judge in that case directed the S. I. to produce the relevant First Information Report Book in the Court so that the counterfoils might be examined but the Sub-Inspector was unable to produce the relevant FIR Book in Court and rather stated that he searched for the counterfoil book but was unable to find it which explanation was however found to be not acceptable. The general diary was also not produced. The general diary was also not produced. In these circumstances the Supreme Court was of the opinion that there was great force in the submission of the learned Counsel for the accused that the original FIR had been suppressed and, in its place the other document had been substituted and that being so, the entire prosecution case became suspect. The Supreme Court also found other infirmities in the evidence of the prosecution and having regard to the special features of the case the Supreme Court felt that the High Court was not justified in setting aside the acquittal of the appellant and then convicting them. It needs no mention that the said decision was rendered by the Supreme Court in the particular facts and circumstances including the special features obtaining in the said case. We will however have to look to the facts, circumstances and evidence on record in our present case before coming to a conclusion as to whether the prosecution case or how far of it, if at all, can be accepted here in our present case. In spite of the concerned statement of P. W. 2 Sadhan Mondal the picture is not necessarily suggestive that really and FIR was lodged at the P. S. on 18-6-93. P. W. 1 Raghunath Biswas in his cross-examination says that his brothers and other inmates used to reside in his house and the other inmates had been to the local P. S. after the incident but they did not lodge any FIR to that effect. So even if it is taken that the complainant's party went to the P. S. on the date of the occurrence yet it does not seem that any FIR was lodged on that date. This position, notwithstanding whatever confused statement might have been made by P. W. 2 Sadhan Mondal, is also clear from the defence suggestion given to P. W. 1 in his cross-examination that he did not lodge any complaint to the local P. S. in the date of the incident as because Ranjit Das also sustained injury at the hand of Narugopal. This defence suggestion also therefore makes it clear that no complaint was lodged at the P. S. on 18-6-93. It has also to be noted here that the victim, although admitted to hospital on 18-6-93, expired on 20-6-93. This defence suggestion also therefore makes it clear that no complaint was lodged at the P. S. on 18-6-93. It has also to be noted here that the victim, although admitted to hospital on 18-6-93, expired on 20-6-93. According to the prosecution case, he was assaulted on his head by a wooden pole. It is quite possible that the complainant's party did not visualise on 18-6-93 that the case would ultimately turn fatal and on that date they were possibly not sure about the seriousness of the injury sustained by the victim although he was hospitalised for the same. Possiblity in these circumstances no FIR was lodged on 18-6-93 at the P. S. and understandably the FIR was lodged on a subsequent date after the demise of the victim in hospital. ( 3 ) P. W. 3 Kamala Mondal is a neighbour of the deceased Narugopal. From her cross-examination we get that her house and the house of Narugopal are intervened by only one public passage. Her evidence is that on the date of occurrence Narugopal was sitting in her house in the afternoon when the accused Ranjit Das and four/five other boys came there and enquired about the house of driver (obviously meaning the father of Narugopal) and they came out and the accused Ranjit Das gave a blow on the head of Narugopal with the wooden pole, Ext. I and Narugopal sustained injuries on his head and then Sunil, Basudev and Sadhan took away Narugopal to the house of Dr. Satyen at Asannagar Bazar wherefrom they took away Narugopal to Shaktinagar Hospital. In her cross-examination she however says that the accused Ranjit had given two blows on the head of Narugopal and he did not give further blow on Narugopal. From the evidence of the I. O. , P. W. 7 it however appears that P. W. 3 Kamala stated during the investigation that when Narugopal fell down on the ground Ranjit gave another blow on his chest. In her evidence in Court Kamala of course does not say anything about assault on the chest of Narugopal by Ranjit and instead she speaks rather of two blows on the head of Ranjit. In her evidence in Court Kamala of course does not say anything about assault on the chest of Narugopal by Ranjit and instead she speaks rather of two blows on the head of Ranjit. The witness was deposing in Court five years after the occurrence and therefore it is quite possible that there may be some minor discrepancies here and there but that is no reason why her evidence should be discarded in its entirety. Her evidence is consistent and clear that it was the accused Ranjit who delivered a blow on the head of the victim Narugopal with the wooden pole ext. I as a result of which Narugopal sustained head injury, and we do not think that there is any good reason to disbelieve this core aspect of the prosecution case. It has been suggested to her in cross-examination that no such incident took place on the relevant day in the manner, time and place as stated by her in examination-in-chief which however she denies. P. W. 4 Sunil Biswas also claims to be an eye-witness to the occurrence. His evidence is that at about 6 p. m. he was sitting in the house of Basudeo Mondal (son of P. W. 3, Kamala Mondal) and at that time some boys of Jhautala came to the house of Basudeb Mondal and enquired about the house of the driver and Narugopal came out of the house of Basudeb and Kamala and he also followed Narugopal and came to the public passage and at that time 'ajit Das' assaulted Narugopal with a wooden pole and then 'ajit Das' and 4/5 others fled away after leaving behind the said wooden pole and then they took away Narugopal to the doctor Satyen Babu at Assannagar Bazar and subsequently they took him to Shaktinagar Hospital. He further says that Narugopal died two days after the incident. His evidence is that thereafter the complaint was lodged at the P. S. and the complaint was written by him at the instance of Raghunath Biswas, the father of the victim. He identifies the wooden pole Ext. I with which Ranjit Das assaulted Narugopal. He also identifies the accused Ranjit Das in Court. Much has been said on behalf of the appellant about the evidence of this witness P. W. 3 who initially speaks of assault by 'ajit Das'. He identifies the wooden pole Ext. I with which Ranjit Das assaulted Narugopal. He also identifies the accused Ranjit Das in Court. Much has been said on behalf of the appellant about the evidence of this witness P. W. 3 who initially speaks of assault by 'ajit Das'. It is true that this witness initially gives the name of the assault as 'ajit Das' but we have seen that in the subsequent part of his very examination-in-chief he has given the correct name of the assailant as Ranjit Das and he has also identified the accused Ranjit Das in Court. Therefore there is no doubt that the name 'ajit Das' must have come from lips of this witness P. W. 4 by some mistake in pronouncement which was ultimately corrected in the very examination-in-chief as well as by the identification of the accused Ranjit Das in Court. Nowhere in the cross-examination also it was suggested to this witness that any 'ajit Das' was there or any 'ajit Das' was a person different from Ranjit Das. This point was also put to the accused Ranjit Das while examined under Section 313, Cr. P. C. in question No. 4. Be that as it may, we have no manner of doubt that the evidence of P. W. 4 Sunil Biswas unmistakably implicates the accused Ranjit Das in the commission of the offence. In his cross-examination he of course says that he also stated to the police that Ranjit had assaulted with the wooden pole on the chest also of Narugopal. There is no doubt that such assault on the chest, if any, was an additional one, apart from the assault on head. As we will see from the medical evidence, it is the head injury which turned fatal in the case and the question whether any assault was made additionally on the chest is insignificant. The evidence of P. W. 4 as well as P. W. 3, as we have seen, who were the eye-witnesses to the occurrence are consistent about the assault on the head of Narugopal by the accused Ranjit Das with a wooden pole. The evidence of P. W. 4 as well as P. W. 3, as we have seen, who were the eye-witnesses to the occurrence are consistent about the assault on the head of Narugopal by the accused Ranjit Das with a wooden pole. It has been suggested to P. W. 4 Sunil Biswas in his cross-examination by the defence that they had been to the house of Ranjit Das for assaulting his brother and that they had assaulted Ranjit Das and further that Utpal Das, Mona Das, Monojit Sarkar and Biswajit Das resisted them from assaulted Ranjit Das, which suggestions are however, denied by the witness. It has also been suggested to him on behalf of the defence that no such incident took place in the manner, place and time as has been stated by him in Court which however he denies. So from the defence suggestion it is at least clear that Ranjit Das and the victim Narugopal were indeed involved in an incident on that day. P. W. 5 Basudeb Mondal who is the son of P. W. 3 Kamala Mondal also is an eye-witness to the occurrence. His evidence is that the victim Narugopal was in their house at about 6 p. m. when 4/5 boys of Jhautala came to their house on riding bicycles and enquired about the house of driver and then he along with Narugopal came out and subsequently the accused Ranjit Das came there on foot with a wooden pole and without saying anything he assaulted Narugopal with the said wooden pole on his head and Narugopal fell down on the ground and then Ranjit Das and others fled away. He further says they did not search for the said boys at that time because they were busy with the injured Narugopal. He also identifies the wooden pole, Material Ext. I by which Ranjit assaulted Narugopal. In his cross-examination he says that this type of wooden pole is used by masons. ( 4 ) P. W. 6 Benoy Biswas says that he was present when the police held inquest over the dead body of Narugopal at the hospital and he also signed the inquest report. P. W. 7 Tapan Kr. Chakrabory is S. I. of police who filled up the formal FIR and started and investigated the case in its earlier part. P. W. 7 Tapan Kr. Chakrabory is S. I. of police who filled up the formal FIR and started and investigated the case in its earlier part. He says that he held raid in the house of the FIR named accused Ranjit Das but could not arrest him. However he arrested Ranjit Das on 28-6-93. He made over the case diary to I. C. on 12-6-94 on his transfer. In his cross-examination he says that he did not make any investigation on the point whether the FIR was lodged at a belated stage. In his cross-examination he says that he did not see any injury on the person of the accused nor did the accused tell him that he was assaulted by someone. P. W. 8 Susanta Kr. Biswas is a Medical Officer of the District Hospital. His evidence is that on 18-6-93 while he was performing emergency duty at Shaktinagar Hospital he examined the victim Narugopal. On examination he found that the patient was conscious and the general condition was fair. He also found one stitched and dressed up wound over right parietal eminence and the wound was under cover of bandage. The patient, he says, was admitted to the Male Surgical Ward of the hospital. In his cross-examination he says that the injury report does not contain any statement as to by whom the assault was made. The doctor also says that he might have noted in his report the name of the assailant if the patient disclosed the name. It has been submitted on behalf of the appellant that the evidence of the doctor shows that the victim or the complainant's party did not name any assailant to the doctor in the hospital and it is only by way of an afterthought that the appellant has been falsely implicated in the case. P. W. 9 Arbindranath Das, S. I. of police, held further investigation after the case was endorsed to him on 18-8-94 for further investigation and he submitted charge-sheet. In his cross-examination he says that Raghunath Biswas, the father of the victim stated to him that the other boys had arrieved at the P. O. and resisted and he also stated to him that the accused Ranjit did not assault his son with the intention to murder as it was stated by the para people. In his cross-examination he says that Raghunath Biswas, the father of the victim stated to him that the other boys had arrieved at the P. O. and resisted and he also stated to him that the accused Ranjit did not assault his son with the intention to murder as it was stated by the para people. It is submitted on behalf of the appellant that this shows that at any rate the assailant had no intention to murder the victim. P. W. 10 Dr. Saktipada Biswas is the Autopsy surgeon who held the post-mortem examination on the deadbody of Narugopal. He inter alia found fracture of right parietal bone and also massive extra-dural haemotoma over right parietal and temporal region. The post-mortem doctor is of the opinion that death was caused due to head injury described by him which was ante-mortem and homicidal in nature to be confirmed by circumstantial evidence. He also says that the said type of injury may be caused by the Material Exbt. I. While examined under Section 313, Cr. P. C. the accused Ranjit Das says that he had no lathi in his hand and he did not take any part in the alleged 'golmal'. He further says that those who have deposed, assaulted him and Sunil Biswas came to him with a view to killing him by ramdao and P. W. 2 Sadhan Mondal took him to the doctor. No such suggestion was however given to P. W. 2 Sadhan Mondal or to P. W. 4 Sunil Biswas. The only suggestion given to P. W. 4 in this respect is that they had been to the house of Ranjit Das for assaulting his brother and they assaulted Ranjit Das which however he denied. ( 5 ) ONE witness was examined on behalf of the defence. D. W. 1 Anukul Ch. Biswas says that he is a medical practitioner and he was attached to Sarala Medical Hall at Asannagar Bazar and that on 18-6-93 he had examined one Ranjit Das with history of injury and after medical check up he referred the said Ranjit Das to Shaktinagar Hospital. He also proves the first aid certificate which was issued by him and marked Ext. A. In his cross-examination he says that there is no writing in the Ext. A with regard to the injury of the said Ranjit Das and it was not mentioned in Ext. He also proves the first aid certificate which was issued by him and marked Ext. A. In his cross-examination he says that there is no writing in the Ext. A with regard to the injury of the said Ranjit Das and it was not mentioned in Ext. A as to on what ground and cause he referred the said Ranjit Das to Saktinagar Hospital. It is not also mentioned in the said repot as at what time he examined Ranjit Das. Ranjit Das, he says, is a resident of Jhoutala and he knows Ranjit Das since his boyhood. We thus find that the defence evidence does not reflect the nature and the cause of the injury alleged to have been sustained by Ranjit Das nor does the evidence show as to why Ranjit Das was not treated at Shaktinagar Hospital if he was really referred to that hospital by D. W. 1 on 18-6-93. ( 6 ) THE learned Advocate for the State refers to the decision of the Supreme Court in Harpal Singh v. Devendra Singh, AIR 1997 SC 2914 : (1997 Cri LJ 3561) in support of his submission that mere delay in lodging the FIR is itself no ground for discarding the FIR or the prosecution case. In our opinion, the matter will have to be looked into in the background of the totality of the facts, circumstances and evidence on record. In the present case in view of certain statement of a prosecution witnesses (i. e. P. W. 2) as we have seen, it has been contained that in this case one FIR was lodged on 18-6-93 which has not been produced in Court and the FIR which has been produced in the Court is virtually the second FIR which should not be taken into consideration. It is true that P. W. 2 Sadhan Mondal has in his cross-examination made some statement which may give rise to some confusion as to whether any FIR was in fact lodged on 18-6-93 but, as we have noted, even to P. W. 1 it was suggested on behalf of the defence in cross-examination that no complaint was lodged at the local P. S. on the date of the incident because Ranjit Das also sustained injury at the hand of Narugopal. In view of such specific suggestion on behalf of the defence that no complaint was lodged at the P. S. on the date of occurrence there is indeed no scope for any speculation that FIR was lodged at the P. S. on 18-6-93. No doubt there was some delay in lodging the FIR, inasmuch as the FIR was lodged on 20-6-93 whereas the alleged incident of assault on Narugopal took place in the evening or late afternoon of 18-6-93. But then this delay in a sense is self-explanatory inasmuch as although the assault took place on 18th the death of the victim however took place on 20th at hospital and thereafter the complainant lodged the FIR at the P. S. It has to be stated that in the case of a delayed FIR or even where the original FIR, if any, is not coming before the Court, that by itself may not in all circumstances be a reason to summarily throw away the prosecution case itself. There may in a given case, still be circumstances and evidence on record capable of giving a clear picture of the core aspect of the case so as to lead the Court to a definite conclusion beyond doubt. But in a case of delayed FIR or in case of any confusion whether there was any earlier FIR, the Court indeed may start with an initial suspicion. But that does not necessarily mean that for that reason alone the prosecution case should be summarily dismissed without examining the totality of the facts, circumstances and evidence on record. In such a situation what the Court is required to do is to be extremely cautions and circumspect and should scan the facts, circumstances and evidence on record very carefully with proper circumspection and scrutiny and if thereafter the Court finds that the core aspect of the prosecution case has been established beyond reasonable doubt, in that event there is no reason why the Court should not recognise the same for ariving at a just conclusion in the matter. As we have seen, in our present case the facts, circumstances and evidence on record including the defence suggestion given to some of the witnesses, make it amply clear that on the date of the occurrence an incident took place involving Narugopal and the appellant Ranjit Das. As we have seen, in our present case the facts, circumstances and evidence on record including the defence suggestion given to some of the witnesses, make it amply clear that on the date of the occurrence an incident took place involving Narugopal and the appellant Ranjit Das. The appellant Ranjit Das, as we have seen, has adduced evidence to show that he sustained injury, but the evidence on the point is nebulous as the nature of the injury has not been disclosed. Moreover why he was referred to Shaktinagar Hospital, if at all, is also not spelt out and why he did not go to the hospital is also not explained. After being convinced from the facts, circumstances and evidence on record that an incident took place on that date in which Narugopal and the accused Ranjit were involved, we may not proceed to look if the core aspect of the incident can be located from the facts, circumstances and evidence on record. It is also amply evident from the evidence on record which we have discussed that in that very evening Narugopal was admitted to Shaktinagar Hospital with head injury. The evidence of the post-mortem doctor also makes it clear that he sustained fracture injury on the head. The post-mortem doctor has also opined that such injury could be caused by Material Ext. I. The prosecution case is also that the said injury was caused by the accused Ranjit by the said wooden pole, Material Ext. I. As we have seen, there are eye-witness to the occurrence who seem to be disinterested witnesses and all of whom are consistent in their statements that the accused Ranjit assaulted Narugopal on his head with the wooden pole as a result of which Narugopal sustained injury. The question whether Narugopal was also assaulted on his chest by one more stroke of the wooden pole is not of any consequence or significance. Starting from the FIR and ending with the evidence it is all through the consistent case of the prosecution that it is Ranjit and Ranjit alone the struck Narugopal on his head with the wooden pole. There is absolutely no reason why the eye-witnesses would involve or implicate the accused Ranjit Das falsely in place of the real culprit. Starting from the FIR and ending with the evidence it is all through the consistent case of the prosecution that it is Ranjit and Ranjit alone the struck Narugopal on his head with the wooden pole. There is absolutely no reason why the eye-witnesses would involve or implicate the accused Ranjit Das falsely in place of the real culprit. Having regard to the facts, circumstances and evidence on record, we are, therefore, convinced that the prosecution have been able to establish the core aspect of its case beyond reasonable doubt that the victim Narugopal sustained head injury on being hit on his head by the accused Ranjit with a wooden pole and he ultimately succumbed to the injury at the hospital. But having regard to the facts, circumstances and evidence on record, we are of the opinion that the case does not come within the purview of Part I of Section 304, I. P. C. as we cannot say that he appellant had the requisite intention that could bring the case under Part I of Section 304, I. P. C. But at the same time having regard to the facts and circumstances, we hold that the petitioner had the requisite knowledge that brings the case under Part II of Section 304, I. P. C. Having regard to the facts, circumstances and evidence on record, we therefore, alter the conviction of the appellant from one under Part I of Section 304, I. P. C. to Part II of Section 304, I. P. C. and sentence him to regorous imprisonment for a period of four years which, we are of the opinion, will serve the ends of justice in that case, in place of the sentence of imprisonment and fine imposed by the learned trial Court, subject to alternation of the conviction and sentence as noted above the appeal stands dismissed. ( 7 ) MALAY KUMAR BASU, J. :- I agree. Petition dismissed.