ALOK KUMAR BASU, J. ( 1 ) THIS appeal has been preferred by Sukurullah Seikh challenging his conviction and sentence under Section 302 of the I. P. C. recorded by the learned Additional Sessions Judge, 1st Track Court-III, Krishnanagar in the district of Nadia in connection with Sessions trial No. 1 (1) of 2004 corresponding to Sessions Case No. 5 (1) of 2004. ( 2 ) THE prosecution case in brief was that on 4th June, 2003, the present appellant came to the house of one Khodabox Seikh of Giridharipur under P. S. Nakashipara in the district of Nadia at about 10 p. m. and he demanded to marry the youngest daughter of said Khodabox. As Khoda Box and his wife Hanifa Bibi made protest to such demand of appellant Sukurullah Seikh, an altercation took place and soon thereafter appellant Sukurullah shot at Khodabox with a firearm. Khodabox was thereafter taken to Bethuadahari Health Centre and therefrom he was taken to Saktinagar hospital at krishnanagar and finally he was referred to nilratan Sarkar hospital at Calcutta where he succumbed to his gun shot injury. ( 3 ) HANIFA Bibi, wife of Khodabox Seikh on 7th June, 2003 narrated the incident before Nakashipara P. S. and on the basis of her narration, a formal complaint was drawn at the Police Station and thereafter on the basis of that complaint of Hanifa Bibi the present case was started which ended ultimately in submission of charge sheet under Section 302 of the I. P. C. read with section 25/27 of the Arms Act against the appellant. ( 4 ) THE learned Additional Sessions judge, however, on examination of police papers framed charge under Section 302 of the I. P. C. against the present appellant for commission of murder of Khodabox on 4th june, 2003 at Giridharipur. Appellant pleaded innocence to the charge framed against him and he claimed for trial. ( 5 ) DURING trial, prosecution examined in all 11 witnesses including P. W. 1 Hanifa bibi, P. W. 2 Olima Khatun, P. W. 6 Basir seikh, some relatives of Khodabox, one doctor who examined Khodabox, soon after his admission at Bethuadahari hospital, the officer who reduced into writing the complaint of Hanifa Bibi and finally, the investigating officer who conducted investigation and submitted charge sheet. 5a. 5a. It appears from record that appellant also examined one witness in support of his alibi and that witness was his wife, who, again happened to be the daughter of deceased Khodabox. ( 6 ) FROM the trend of cross-examination as well as from the examination of the appellant under Section 313 of the Cr. P. C. and also from the nature of evidence adduced by appellant, it was very much clear that appellant took two different pleas in support of his stand during trial and those pleas were that he was absent at the time of occurrence and that Khodabox received the gun shot injury not at his house as alleged by prosecution, but, at some other place. ( 7 ) THE learned Additional Sessions judge, after perusal of prosecution evidence specially the statement of P. W. 1 Hanifa Bibi and P. W. 2 Olima Khatun who were witnesses to the occurrence and with reference to the statement of P. W. 3 to P. W 8, came to the conclusion that on 4th June, 2003 appellant after coming to the house of khodabox at Giridharpur tried to take away p. W. 2 Olima Khatun with him with a view to marry her against her will and at this point when Khodabox and his wife Hanifa Bibi made protest, appellant, by using his fire arm, shot at Khodabox and Khodabox received a bullet injury on his left abdomen and ultimately died at Nilratan Sarkar hospital, Calcutta out of that gun shot injury. It appears from the judgment of the learned additional Sessions Judge that although the doctor who conducted post mortem examination at Nilratan Sarkar hospital could not be examined, since prosecution produced the original post mortem report and against admission of which in evidence, there was no objection from the side of the appellant during trial, the post mortem report was looked into and from the post mortem report it was available that Khodabox, in fact, received gun shot injury and he died out of such injury which was both anti-mortem and homicidal in nature. ( 8 ) THUS, the learned Additional Sessions judge, relying on prosecution evidence as stated above and after considering the post mortem report, came to the conclusion that appellant was responsible for the homicidal death of Khodabox and in this context, the learned Additional Sessions Judge did not accept the statement of the defence witness by which attempt was made to prove the alibi of the appellant. The learned Additional Sessions judge, thus, after considering the evidence of both prosecution and the accused and after hearing submissions of both the prosecution and the accused person found the appellant guilty of the offence under section 302 of the I. P. C. and the appellant was accordingly convicted and he was sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year more. ( 9 ) BEING aggrieved by and dissatisfied with the order of conviction and sentence, appellant preferred the present appeal and appearing for the appellant Mr. Bagchi has made the following submissions challenging the order of conviction and sentence :-Mr. Bagchi contends that in this case although alleged occurrence according to prosecution took place on 4th June, 2003 at 10 p. m. , but, the FIR in question was lodged only on 7th June, 2003 and there appears no explanation at all for the unusual delay in lodging the FIR and this unusual delay without being supported by any plausible explanation is sufficient to raise question about involvement of the appellant behind the alleged offence. ( 10 ) MR. Bagchi contends that it would appear from the statement of the doctor P. W. 9, that he had the first opportunity to examine Khodabox soon after his admission in Bethuadahari hospital but neither khodabox nor the companions of Khodabox gave any statement disclosing the name of the appellant which was very much known to Khodabox and his companions and in this context, it is very important to mention that according to report of the doctor, Khodabox was conscious and he was cooperating during treatment. Mr. Bagchi contends that this vital omission on the part of Khodabox and his companions to mention the name of the appellant as the assailant of Khodabox was again sufficient to raise eyebrow about the claim of prosecution involving the appellant behind the commission of the alleged crime. ( 11 ) MR. Mr. Bagchi contends that this vital omission on the part of Khodabox and his companions to mention the name of the appellant as the assailant of Khodabox was again sufficient to raise eyebrow about the claim of prosecution involving the appellant behind the commission of the alleged crime. ( 11 ) MR. Bagchi contends that it was the stand of the appellant all along that there was a dispute between appellant and P. W. 6 Basir Seikh over marriage of the wife of basir Seikh and it was the specific stand of the appellant during trial that Basir Seikh out of previous enmity manufactured the present complaint against the appellant and for this reason alone, not a single independent witness of the locality came forward to support the prosecution allegation against the appellant. ( 12 ) MR. Bagchi contends that it totally escaped attention of the learned Trial Judge that prosecution could not prove satisfactorily the homicidal death of Khodabox. Since the doctor who conducted post mortem examination was not produced for examination during trial and for that reason, it was not possible to bring on record emphatically whether Khodabox actually suffered a homicidal death and whether the injury received by him was sufficient in the ordinary course to cause his death. ( 13 ) MR. Bagchi finally contends that in this particular case appellant took an alibi which was established both through cross-examination of principal witnesses of prosecution and also through D. W. 1 and the learned trial Court did not consider this alibi at all in proper perspective. ( 14 ) THUS, Mr. Bagchi contends that having regard to the overall prosecution evidence and also having regard to the fact that the post mortem doctor was not examined by the prosecution during trial, the learned trial Judge was not justified in recording the order of conviction and sentence. ( 15 ) MR. ( 14 ) THUS, Mr. Bagchi contends that having regard to the overall prosecution evidence and also having regard to the fact that the post mortem doctor was not examined by the prosecution during trial, the learned trial Judge was not justified in recording the order of conviction and sentence. ( 15 ) MR. Bagchi without accepting prosecution evidence has also made an alternative submission to this effect that since doctor conducting post mortem examination was not examined and since it is available from record of prosecution itself that victim khodabox died after 15 days from receipt of the gun shot injury, the learned Trial Court was not perhaps correct in holding the appellant guilty of the offence under Section 302 of the I. P. C. and there was enough scope to hold that the appellant committed an offence under Section 304 of the I. P. C. and considering that factual aspect, the order of sentence passed by the learned Trial court requires reconsideration by this Court of Appeal in the interest of justice. ( 16 ) THE learned advocate appearing for the State, on the other hand, submits with reference to the fact and evidence on record that although there was some delay in lodging the FIR, but, it is available from record that since the FIR maker and her other relatives were busy for arranging treatment of khodabox, police could not be informed immediately after the occurrence and considering this position, there is no merit in the contention of the appellant that for delay in lodging the FIR, the prosecution, case should be thrown out. ( 17 ) THE learned advocate for the State contends that P. W. 1 and P. W. 2 in most specific term deposed during trial that in their presence appellant shot at Khodabox for which Khodabox became injured and ultimately died in the hospital and it is further available from the statement of P. W. 3 to P. W. 8 that in their presence Khodabox himself uttered the name of appellant as his assailant and in view of this overwhelming evidence of the prosecution, omission of khodabox or his companions to mention the name of appellant before the doctor was of no significance. ( 18 ) THE learned advocate for the State contends that the post mortem report which was produced in original has clearly proved the prosecution allegation and considering the post mortem report as a whole, there appears no reason to disbelieve the prosecution case. ( 19 ) REGARDING the alternative submission of Mr. Bagchi, it has been contended on behalf of the State that the appellant shot at deceased Khodabox aiming at his abdomen which was a vital part of the body hence, even if the post mortem doctor was not examined, there is no scope to bring down the order of conviction from Section 302 of the IPC to Section 304 of the IPC. ( 20 ) WE have considered submissions of both Mr. Bagchi and the learned Advocate representing the State and we have also carefully examined the entire prosecution evidence as well as the evidence of the appellant. ( 21 ) FROM the FIR of Hanifa Bibi we find that on 4th June, 2003 at about 10 p. m. Khodabox was shot at his residence by the appellant and we find from the post mortem report that Khodabox died as a result of receipt of gun shot injury which was anti-mortem and homicidal in nature and from the post mortem report we also get corroboration regarding the time of receipt of such gun shot injury. ( 22 ) NEW, the crucial question for consideration would be whether appellant was actually responsible for the gun shot injury inflicted on Khodabox or not. From the statement of P. W. 1 and P. W. 2 we find that both of them were present near Khodabox and we find further from the statement of P. W. 1 and P. W. 2 that when appellant tried to take away P. W. 2 forcibly, Khodabox and P. W. 1 made protest and at that point of time appellant used his firearm and inflicted injury through bullet at the left abdomen of khodabox. P. W. 1 and P. W. 2 in most categorical term supported the prosecution case and from their cross-examination we do not get anything to disbelieve their statement. P. W. 1 and P. W. 2 in most categorical term supported the prosecution case and from their cross-examination we do not get anything to disbelieve their statement. ( 23 ) AGAIN, from the statement of P. W. 3 to P. W. 8 we find that all of them directly gathered the name of appellant as the assistant of Khodabox from Khodabox himself and if we consider the evidence of eye-witnesses p. W. 1 and P. W. 2 along with the statement of P. W. 3 to P. W. 8, we are bound to accept the prosecution story that on 4th june, 2003 at 10 p. m. appellant shot at khodabox. ( 24 ) IN view of overwhelming prosecution evidence, the omission of Khodabox and his companions to mention the name of appellant before doctor P. W. 9, in our considered view, is of no significance. ( 25 ) WE have earlier stated that appellant took a definite plea that he was absent at the place of occurrence on the relevant date and to prove this alibi appellant examined his wife D. W. 1 and after considering the cross-examination of D. W. 1, we fully share the view of the learned Judge that d. W. 1 came to depose only to save her husband and there was no truth in her statement supporting the alibi of her husband. ( 26 ) THUS, after considering the points taken by Mr. Bagchi and after considering the prosecution evidence as well as the evidence of the appellant adduced during trial, we are of the view that prosecution case against the appellant or homicidal death of khodabox was proved beyond all reasonable doubt and the learned Judge rightly found the appellant guilty. ( 27 ) NOW, we come to the alternative argument of Mr. Bagchi which was, however, not the subject-matter for consideration before the learned trial Judge. Mr. Bagchi submits before us that in a case of homicidal death the substantive evidence of doctor who conducted post mortem examination is always considered to be of great value so as to ascertain the real cause of death and to help the learned Court to reach a correct decision whether the offence of culpable homicide amounts to murder or not. ( 28 ) MR. ( 28 ) MR. Bagchi submits that it is not disputed by prosecution that Khodabox on receipt of the bullet injury did not expire on 4th June, 2003 or immediately thereafter, but, in fact, he died after a fortnight in nilratan Sarkar hospital and since the doctor who conducted the post mortem examination was not examined, virtually there was no scope to get from the doctor as to whether the injury suffered by Khodabox was sufficient in the ordinary course to cause his death and in that context a question would certainly arise as to whether the appellant could be made liable for the offence under section 302 or under Section 304 of the IPC. ( 29 ) WE have given our anxious consideration to the point taken by Mr. Bagchi and we find on examination of the judgment of the learned trial Court that this question was not agitated before the learned trial Court, but, from the fact and evidence on record we cannot brush aside this vital question and hence, we are inclined to examine the contention of Mr. Bagchi in the background of the prosecution evidence. ( 30 ) ONCE we have come to the conclusion on perusal of prosecution evidence and after considering submissions of both Mr. Bagchi and the learned Advocate representing the State that appellant was responsible for the homicidal death of Khodabox, we are to answer the question raised by Mr. Bagchi as to whether that homicidal death caused by appellant would really amount to murder or not. Bagchi and the learned Advocate representing the State that appellant was responsible for the homicidal death of Khodabox, we are to answer the question raised by Mr. Bagchi as to whether that homicidal death caused by appellant would really amount to murder or not. ( 31 ) WE find from the fact of the case that although Khodabox received the gun shot injury on 4th June, 2003, he actually expired after almost 15 days from receipt of the gun shot injury and we have no evidence before us wherefrom we can reasonably come to the conclusion that the injury received by Khodabox on 4th June, 2003 was the actual cause of his death or in other words whether the injury of Khodabox in the ordinary course was sufficient to cause his death and for lack of evidence in this regard we cannot take a firm view that the homicidal death suffered by Khodabox would actually amount to murder and it is well settled principal of law that when there is a question of this nature, the benefit would go in favour of the accused person and in this particular case when prosecution did not bring the doctor who conducted post mortem examination and when we do not have sufficient medical evidence to hold conclusively that the injury caused by appellant was sufficient in the ordinary course to cause the death of Khodabox, we are of the view that the offence committed by appellant would come under Section 304, Part I of the IPC, because, from the nature of injury and from the location of the injury, we are of the view that appellant had the intention of causing the death of Khodabox. ( 32 ) IN view of our above observation, we are inclined to allow this appeal in part by modifying the conviction of the appellant from Section 302 of the IPC to that under section 304. Part I of the IPC and we are of the further view that having regard to the fact and circumstance of the case, it would be sufficient for the purpose of justice if the appellant is sentenced to suffer rigorous imprisonment for tea years and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for two months more. 2,000/- in default to suffer rigorous imprisonment for two months more. ( 33 ) IN the result, we allow this appeal in part and we modify the order of conviction and the appellant is convicted under Section 304, part 1 of the IPC and he is sentenced to suffer imprisonment as indicated above. ( 34 ) SEND a copy of this judgment along with LCR at once to the learned trial Court with a direction to issue modified jail warrant against the appellant. ( 35 ) THE appellant shall be entitled to have the benefit of set-off as provided under Section 428 of the Cr. P. C. ( 36 ) SINCE the appellant is in jail, office is directed to send a copy of this judgment to the Superintendents of the Correctional home where the appellant is detained for his information. ( 37 ) URGENT xerox certified copy of this judgment and order be supplied as early as possible after complying with all necessary legal formalities. Order accordingly.