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2007 DIGILAW 747 (GAU)

Manik Chakraborty v. State of Tripura

2007-11-16

UTPALENDU BIKAS SAHA

body2007
JUDGMENT U.B. Saha, J. 1. Appellant Manik Chakraborty has filed this appeal under Section 374 Code of Criminal Procedure against his conviction for offence under Section 304 and Section 448 of the IPC and sentence for suffering R.I. for four years and a fine of Rs. 10,000/-, in default to suffer further imprisonment for three months, and further sentence to pay a fine of Rs. 1000/-, in default to suffer further imprisonment for one month by the learned Additional Sessions Judge, West Tripura vide his judgment and order dated 5.5.2000 in ST 115 (WT/A) of 1999. 2. Heard Mr. P.K. Biswas, learned Counsel assisted by Mr. P. Majumder, learned Counsel for the Appellant and Mr. A. Ghosh, learned Additional P.P. for the Respondent State. 3. The prosecution story, in brief, as stated before the trial Court, is that on 2.10.1998, at about 0.30 hours, the accused Appellant broke open the gate and trespassed into the house of the informant, Smti. Minati Debnath (P.W. 1) which caused her and her husband, Nani Gopal Debnath (since deceased) to wake up and when they came out of their room, they found the accused Appellant, Manik standing in the Courtyard. The accused Appellant charged deceased Nani Gopal of stealing his bicycle and caught hold of the stick of Nani Gopal and pulled him. In the result, Nani Gopal fell on the ground. (It is alleged that Nani Gopal was a man of 75 years and walked with the help of a stick). Then the accused Appellant lifted him up and threw him again on the ground and kicked on his chest. The informant/wife of Nani Gopal tried to resist the accused Appellant, but she was also violently assaulted by the accused Appellant. To no alternative, she raised alarm and hearing her cry, the inmates from other houses and other co-villagers came to the house of the informant. Seeing them, the accused Appellant then fled away. Thereafter, Nani Gopal was brought to GB. Hospital where the Medical Officer after examination declared him dead. 4. On the basis of the report to the police at about 3.15 hours on 2.10.98, the police rushed to the place of occurrence and obtained written Ejahar from the informant Smti. Minati Debnath (P.W. 1). Thereafter East Agartala P.S. Case No. 137/98 was registered against the accused Appellant under Sections 448 and 302 IPC. 4. On the basis of the report to the police at about 3.15 hours on 2.10.98, the police rushed to the place of occurrence and obtained written Ejahar from the informant Smti. Minati Debnath (P.W. 1). Thereafter East Agartala P.S. Case No. 137/98 was registered against the accused Appellant under Sections 448 and 302 IPC. After the investigations were complete, the police filed a charge sheet against the accused Manik Chakraborty, Appellant herein, for commission of offence punishable under Sections 448 and 302 of the IPC. 5. On receipt of the charge sheet, the learned Chief Judicial Magistrate, West Tripura, Agartala took cognizance of offence under Sections 448/302 IPC and since the offence alleged to have been committed by the accused Manik is exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions which thereafter was transferred to the Court of the learned Additional Sessions Judge, West Tripura, Agartala for trial. 6. The Trial Court on the basis of the materials available framed charges under Sections 448/302 IPC against the accused Appellant, to which he pleaded not guilty and claimed to be tried. The statement of the accused Appellant was recorded under Section 313 of the Code of Criminal Procedure and he denied the allegation labelled against him. 7. In order to establish the charge, altogether 12 witnesses were examined on behalf of the prosecution and the accused Appellant, on the other hand, adduced no evidence in his defence. The defence of the accused Appellant was of total denial of the occurrence. 8. Upon consideration of evidence as well as materials on record and after hearing the learned Counsel of both the parties, the learned Additional Sessions Judge was pleased to acquit the accused Appellant from the charge under Section 302 IPC, but held him guilty of committing offence punishable under Sections 304 and 448 IPC and accordingly passed the impugned judgment of conviction and sentence on 5.5.2000 as aforenoted. 9. Aggrieved by and dissatisfied with the order of conviction and sentence passed by the learned Trial Court, the Appellant preferred the present appeal. 10. Mr. P.K. Biswas, learned Counsel for the Appellant assailing the judgment of the Trial Court submits that the judgment of the Trial Court is erroneous and against the evidence on records. 9. Aggrieved by and dissatisfied with the order of conviction and sentence passed by the learned Trial Court, the Appellant preferred the present appeal. 10. Mr. P.K. Biswas, learned Counsel for the Appellant assailing the judgment of the Trial Court submits that the judgment of the Trial Court is erroneous and against the evidence on records. He further submits that the evidence on record does not constitute any offence under Section 304 IPC and as such the order of conviction and sentence is liable to be set aside. According to Mr. Biswas, the informant passed a telephonic information to the Officer In-charge of G.B. Hospital Police Outpost at 3.15 a.m. that her husband was murdered, in her house at Indranagar, a cognizable offence, which information was entered into the G.D. of the said Outpost and the alleged FIR, Exhibit P-1, was recorded during die investigation after the first telephonic information, which is hit by Section 162Code of Criminal Procedure. He has further contended that the informant did not disclose the name of the Appellant to the said Police Outpost when she informed the incident at the first instance, which would be evident from G.D. entry. Non-mention of name of the assailant to the police by the informant at the first instance goes to show that the informant could not identify the assailant at the time of alleged incident. Accordingly, the learned Trial Court ought to have considered that the name of the Appellant which was mentioned subsequently is an action of afterthought. The learned Counsel for the Appellant has also referred to some contradiction between the testimony of P.W. 1 and P.W. 2 on the one hand and the evidence of doctor, P.W. 10, on the other. According to him, the doctor did not find any grievous injury either on chest or any other part of the body of deceased Nani Gopal. He also relies on the postmortem report submitted wherein it was specifically stated that the death of the deceased Nani Gopal was due to cardio respiratory failure, and not due to alleged assault by the accused Appellant and doctor also did not state that the said cardio respiratory failure is the result of the alleged assault Had there been any mark of injury, then a reasonable person can come to a conclusion that it is only the accused Appellant who caused such bodily injury. In absence of any such mark of injury, it creates doubt in the mind of any reasonable person, which the learned Trial Court failed to consider while it convicted the accused Appellant under Section 304. Even if the Court believes the prosecution case as on evidence record, then also no offence is proved under Section304, he urges. His further submission is that except the P.W. 1 and P.W. 2, there is no other eyewitness of the alleged incident. P.W. 1 and P.W. 2 being relation interested, the learned Trial Court ought not to have passed the order of conviction relying on those witnesses, and even if reliance is placed, according to him, then also there is no evidence on record for conviction under Section 304, at best a case is made out against the accused Appellant under Section 323 Code of Criminal Procedure read with Section 448 IPC. His next submission is that it would be established from the evidence on record that the convict Appellant had no intention to cause alleged offence and he had also no knowledge that such type of injury may cause death. Hence, even if there is any injury caused that cannot come within the purview of Section 304 IPC. He has further contended that if the evidence of P.Ws. 1,2 and 3 as well as evidence of doctor (P.W. 10) are taken together, then it would be noticed that the evidence of doctor is not corroborating the evidence of P.Ws. 1, 2 and 3 and it is settled position of law that when there is contradiction/differences between the ocular evidence and the medical evidence then the evidence of medical officer will prevail. Therefore, on scrutiny of the entire evidence, it is a fit case to acquit the convict Appellant even on benefit of doubt. 11. In favour of his contention, Mr. P.K. Biswas, learned Counsel for the Appellant has relied on the following decisions in State of Karnataka v. Shivalingaiah AIR 1988 SC 115 , in Karim Khan v. State of Rajasthan (1971) Cri. L.J. 1654 and in Pirthi v. State of Haryana (1994) Cri. L.J. 2187. 12. Supporting the judgment of the Trial Court and controverting the submission of Mr. Biswas, learned Additional P.P., Mr. L.J. 1654 and in Pirthi v. State of Haryana (1994) Cri. L.J. 2187. 12. Supporting the judgment of the Trial Court and controverting the submission of Mr. Biswas, learned Additional P.P., Mr. A. Ghosh, on the other hand, strenuously submits that the informant (P.W. 1), the wife of the deceased Nani Gopal, who witnessed the occurrence, is a rustic woman, and she can not be expected to say everything at any instance. Immediately after the occurrence, she informed the police over telephone to apprise murder of her husband and when she found her son (P.W. 4), she narrated the entire incident to him and with his help, she also handed over the written complaint to the police disclosing the name of the assailant/accused Appellant, Manik. P.Ws. 1, 2 and 3 are the eyewitnesses and they corroborated each other. According to him, the learned Trial Court has rightly come to the conclusion that the accused Appellant Manik had trespassed into the house of the deceased Nani Gopal in the dead hour of night with a definite intention and while he was charging deceased Nani Gopal for stealing of his bicycle, an altercation was developed between the accused Manik and the deceased Nani Gopal and on sudden provocation, the accused Appellant Manik started assaulting the deceased Nani Gopal, who was an old man of 75 years. Due to such assaulting, deceased Nani Gopal was made, bodily injured and such bodily injury caused his death. Therefore, the learned Additional Sessions Judge correctly held that the accused Appellant Manik is guilty for committing offence punishable under Sections 448 and 304 IPC and awarded the conviction and punishment to suffer rigorous imprisonment for four years with fine, which requires no interference by this Court. He further submits that if the Court would take up the evidence of P.Ws. 1 and 2 and P.W. 10 together, then there would be no other option to the Court except to come to the conclusion that the offence committed by the accused Appellant is nothing but a grievous hurt which would come within the purview of Section 320 IPC punishable under Section 325 of the IPC. 13. 1 and 2 and P.W. 10 together, then there would be no other option to the Court except to come to the conclusion that the offence committed by the accused Appellant is nothing but a grievous hurt which would come within the purview of Section 320 IPC punishable under Section 325 of the IPC. 13. This Court cannot agree with the submissions of the learned Additional P.P. as the Medical Officer (P.W. 10) specifically stated in his deposition that he did not find any injury like the grievous hurt on the person of the deceased Nani Gopal at the time of postmortem examination and the postmortem report also support the said contention of the medical officer. The conclusion of the medical officer is that injury is simple in nature. 14. P.W. 1, Smti. Minati Debnath, the informant, wife of the deceased Nani Gopal, in her deposition stated, that on the night of Bijaya Dashami, in the year 1998, at about 12.30 a.m., accused Manik trespassed into her house by breaking open the gate. Her husband getting sound of breaking the gate asked her to see what happened. She opened the door and came out from the room and saw the accused Manik standing in their Courtyard. Her husband also came out from the room. Accused Manik then charged her husband that he had stolen the bicycle of the accused. When her husband denied the allegation, the accused Manik attacked him and the accused threw her husband on the ground and started kicking on his person. She tried to resist accused Manik, but he also threw her on the ground. Her daughter in law (P.W. 2) saw the incident. She then raised alarm and called the neighbouring people. When the neighbouring people came to their house, seeing them accused Manik fled away. Then her husband was shifted to the G.B. Hospital, but the medical officer after examination pro-claimed her husband dead. On the same night, police visited their house. She lodged Ejahar to the police officer. Her son Rabindra Debnath (P.W. 4) scribed the Ejahar as per her version. At the time of incident, her son was not at home. He was on duty at Jagaharimura and he returned home at about 2 a.m. She identified the Ejahar, which was marked as Exbt. 1. This witness identified the accused Manik in the dock. 15. P.W. 2, Smti. At the time of incident, her son was not at home. He was on duty at Jagaharimura and he returned home at about 2 a.m. She identified the Ejahar, which was marked as Exbt. 1. This witness identified the accused Manik in the dock. 15. P.W. 2, Smti. Sabitri Debnath, the daughter-in-law of the deceased and the informant, stated to be an eyewitness of the occurrence, stated in her deposition that after hearing a hue and cry at about 0.30 hours, she came out from her room with her sister-in-law and saw the accused Manik altercating with her father-in-law and seeing them on the spot, the accused Manik asked them to return their respective rooms, and out of fear, they returned to their rooms. But through the window of the room she saw the accused Manik to throw her father-in-law on the wall of their hut; as a result her father-in-law sustained injury on his head. When her father-in-law got up from the ground, accused Manik, again threw him on the ground and abused him. She along with Ors. carried her father-in-law to the hospital but her father-in-law was declared dead by the Medical Officer of the G.B. Hospital. 16. The said statement of P.Ws. 1 and 2 are corroborated by P.W. 3, Smti. Sipra Biswas, who is a tenant of the deceased and also stated to be an eyewitness of the occurrence. She too returned from the courtyard of the deceased to her respective room as threatened by the accused Appellant but saw the occurrence through the window of her room, while the accused was assaulting the deceased Nani Gopal. She specifically stated that she saw the person assaulting and throwing the deceased Nani Gopal on the wall of their room. She went to G.B. Hospital along with Ors. while the deceased was carried to the said hospital where medical officer after examination proclaimed him dead. She came to learn the name of the accused from the wife of the deceased Nani Gopal and that he is a resident of that locality. 17. She went to G.B. Hospital along with Ors. while the deceased was carried to the said hospital where medical officer after examination proclaimed him dead. She came to learn the name of the accused from the wife of the deceased Nani Gopal and that he is a resident of that locality. 17. P.W. 4, Rabindra Debnath, son of deceased Nani Gopal Debnath, who was serving as Home Guard, in his deposition stated that on the intervening night of the death of his father, he was deployed for duty at Aralia and after performing his duty while he returned East Agartala P.S. at 1.30 a.m., at that time, his co-villager Bhulu Ranjan Das (P.W. 5) came to the East Agartala P.S. and informed him that something happened in his house and also requested him to return home immediately. Thereafter, he rushed to his house and came to learn from his mother that the accused Manik trespassed to their house and assaulted his father, which caused his death. He thereafter scribed the Ejahar as per version of his mother. 18. P.W. 5 Bhulu Ranjan Das, P.W. 6 Parimal Sarkar, P.W. 7 Sanjoy Debnath, P.W. 8 Raju Debnath, P.W. 9 Babul Das, none of them are eyewitness, rather all of them came to the place of occurrence after hearing hue and cry, and saw the deceased lying on the ground and came to learn from P.W. 1, wife of the deceased, that the accused Manik assaulted the deceased Nani Gopal. 19. P.W. 8, Shri Raju Debnath in his deposition stated that on 1.10.98, in the night of Bijaya Dashami, he was sleeping in their shop. At about 12 night his grand-mother called him from his sleep and told him that his grand father Nani Gopal was assaulted by the accused Manik. Getting such information, he rushed to the spot and found his grand father Nani Gopal lying unconscious in the courtyard. He, his grand mother and Ors. carried the deceased Nani Gopal to the hospital where he was declared dead. 20. P.W. 10, Dr. Pijush Kanti Das is the Medical Officer who held postmortem on the dead body of the deceased Nani Gopal Debnath. He in his deposition stated that on examination of the dead body, he found 2 Nos. abrasion on the left side of the chest and abdomen of the deceased measuring 1"x1/8"x skin deep. 20. P.W. 10, Dr. Pijush Kanti Das is the Medical Officer who held postmortem on the dead body of the deceased Nani Gopal Debnath. He in his deposition stated that on examination of the dead body, he found 2 Nos. abrasion on the left side of the chest and abdomen of the deceased measuring 1"x1/8"x skin deep. The patient was taken to the hospital with the history of assault. According to him, the death of deceased was caused due to cardio respiratory failure. He further stated that the deceased was 75 years old and a man like deceased at the age of 75 years may die due to sudden shock. Such person may die if he falls on a hard substance. In his cross-examination, he stated that haematoma may surface along with abrasion on the head of the person, if he is thrown on a hard substance. He did not find any head injury on the body of the deceased. After holding postmortem he submitted his report in a prescribed form, which was marked as Exbt. D. 2. He further stated that a person if moves with the help of a lathi and if he is pulled towards the front side, he will fall on the front side. But if he is pushed he will fall on the backside. If he falls on the front side he may sustain injury on any part of the body. The injuries found on the body of the deceased were antemortem. 21. P.W. 11, Pradip Debbarma, was a constable in the G.B. TOP who carried the dead body of Nani Gopal Debnath from the G.B. Hospital to I.G.M. Hospital for postmortem. P.W. 12, Shanti Bhusan Bhuiyan, was the O.C. of G.B. TOP, who received the telephonic message from Minati Debnath (P.W. 1/informant) on 2.10.98 at about 3.15 hours regarding murder of her husband Nani Gopal. After receipt of information, he rushed to the place of occurrence, received the written complaint from her scribed by Rabindra Debnath (P.W. 4) and prepared the hand sketch map. He also recorded the statements of the witnesses under Section 161 Code of Criminal Procedure. On the same day, he raided the house of the accused Appellant and arrested him in connection with this case. He also recorded the statements of the witnesses under Section 161 Code of Criminal Procedure. On the same day, he raided the house of the accused Appellant and arrested him in connection with this case. After completion of the investigation, he submitted the charge sheet against the accused Appellant under Sections 448 and 302 IPC as, prima facie, case was established against the accused person. 22. In Shivalingaiah (supra), the Trial Court held that offence made out by the prosecution fell punishable under Section 323 IPC and not under Section 302 IPC and sentenced the accused Respondent to undergo rigorous imprisonment for one year. On appeal, the High Court of Karnataka, held that it was difficult to draw an interference that the Respondent had any intention to kill or murder the deceased Giri Gowda and also observed that the incident took place all of a sudden and on the spur of the moment when the deceased put his hands on the shoulder of the Respondent with a view to make him sit down and held that the Respondent appears to have acted on a sudden impulse without any intention or knowledge that his act of squeezing the testicles of the deceased was likely to cause his death. On appeal by the State of Karnataka, concerning the testimony of Dr. T.C. Seetharam, who stated, inter alia, that such act was dangerous to human life and it actually led to the cardiac arrest of the deceased as a result of which he died almost instantaneously, the Apex Court allowed the appeal altering the conviction of the Respondent from Section 323 to one under Section 325 Penal Code and sentenced him to undergo R.I. for a period of three years. But in the instant case, there is nothing available from the statement of doctor that the act of the accused is the direct cause for the death of the deceased. Hence, the said case has no direct bearing and thus is not applicable for deciding the case in hand. 23. In Karim Khan (supra), the Trial Court found the accused Karim Khan committed offence under Section 304 Part-II, IPC and not under Section 302, IPC and sentenced him to suffer for five years and to pay a fine of Rs. 1000/-, in default of payment of which to further undergo one year's rigorous imprisonment. 23. In Karim Khan (supra), the Trial Court found the accused Karim Khan committed offence under Section 304 Part-II, IPC and not under Section 302, IPC and sentenced him to suffer for five years and to pay a fine of Rs. 1000/-, in default of payment of which to further undergo one year's rigorous imprisonment. Aggrieved by the judgment of the Trial Court, Karim Khan preferred appeal before the High Court of Rajasthan and after considering the deposition of Dr. S.L. Agarwal, Medical Officer, Gangapur City, who stated inter alia, that Subhan Shah was an old man of 65 years of age. There was no external mark of injury on his person. The left auricle was ruptured with an opening of 1" X V2" irregular on its upper surface and that the cause of death of Subhan Shah was the rupture of heart, resulting in heart-failure. The heart-failure could be caused by forceful collision of the stone. In his cross-examination, he also stated that the rupture of heart could be natural, accidental or homicidal and that no clinical data was available to distinguish whether the death of the victim was natural or otherwise. The doctor also deposed that the heart is located below the skin, bones, muscles, and pericardium cavity. None of the outer fibrous and the inner serious layers were found injured. Had the stone been hit on the chest, the abovementioned parts of the body should have been damaged. The learned Single Judge of the said High Court held that "keeping in view the opinion of Doctor Agarwal and the medical authorities cited above it is possible to conclude that the victim's rupture of the heart was not necessarily homicidal. In that context, it is difficult to impute knowledge to the accused that the death was likely to result by the stone which he is alleged to have flung. The injury alleged to have been caused by the accused was neither such as was likely to cause death, nor such as would endanger the life under ordinary conditions. There being no mark of injury, external or internal, it is difficult to conclude that the Appellant intended or knew that he was likely to endanger the life of his victim. To put the matter in alternative words, it is not made out in the case that the death of the deceased resulted from the injury. There being no mark of injury, external or internal, it is difficult to conclude that the Appellant intended or knew that he was likely to endanger the life of his victim. To put the matter in alternative words, it is not made out in the case that the death of the deceased resulted from the injury. The conviction under Section 304, Part-II, IPC is, therefore, unsustainable. It is, further, clear that the case would not properly fall under any of the 8 clauses of Section 320, IPC, as no grievous injury was inflicted by the accused; vide jani Gulab Shaikh v. State of Maharashtra Criminal Appeal No. 13 of 1968, decided on 29.8.1969 (SC). Therefore, the accused also cannot be convicted under Section 325, IPC. He, keeping in view the prosecution evidence, can only be convicted under Section 323, IPC". Accordingly, convicted the accused under Section 323, IPC altering the conviction under Section 304 Part-II, IPC and sentenced him to six months' rigorous imprisonment. 24. In Pirthi v. State of Haryana (supra), the prosecution case was that on 2.4.86 at about 2 p.m. the Appellant of that case came in front of the house of Jia Lal, deceased and there was a quarrel and the Appellant kicked the deceased on his testicles as a result of which the deceased fell down and the Appellant again kicked on the testicles of the deceased. The wife and daughter of the deceased intervened and they removed the injured to the house and later he was shifted to the hospital only on 4.4.86. The Doctor found a diffused swelling on the scrotum and penis and skin over the scrotum and penis was found to be blackening and gangrenous and he was treated in the hospital. Because of the gangrene the deceased died on 5.4.86. A case was registered under Section 302, IPC. The Trial Court after examining the witnesses hardly found guilty the accused of that case under Section 304Part-II, IPC and sentenced him to four years' R.I. The High Court on appeal held that by giving such kicks, the Appellant had knowledge that he was likely to cause death and accordingly, convicted him under Section 304, Part-II, IPC. But on appeal, considering the circumstances of that case and on the basis of the opinion of the doctor, particularly the evidence of Dr. But on appeal, considering the circumstances of that case and on the basis of the opinion of the doctor, particularly the evidence of Dr. Naveen Sabharwal, P.W. 8, who conducted the postmortem and opined that the death of the deceased was due to Toximia which was the result of the injury to the testicles, and opinion of Anr. doctor, P.W. 6, who also opined that the duration between injury and the death could not be given because the cause of death was Toximia due to gangrene and because of the lack of immediate medical help, the gangrene developed, the Apex Court set aside the conviction of the accused Appellant under Section 304, Part-II, IPC and the sentence of four years' R.I., instead he was convicted under Section 323, IPC and sentenced to undergo seven months' R.I. The Apex Court also confirmed the sentence of fine with default clause and the direction that the whole amount should be paid to the heirs of the deceased. 25. In the Public Prosecutor, Andhra Pradesh v. Nalam Survanaravana Murthy 1973 Cri. L.J. 1238, a Division Bench of the Andhra Pradesh High Court considering the prosecution case, inter alia, that the Respondent and his wife, the deceased Sesharatnam were together running a sundry shop in the front portion of their house in Komaragiripatnem, Amalapuram Taluk in the District of East Godavari. At about 3.00 P.M. on March 26, 1970, the accused found fault with the deceased for having paid some excess change to one of their customers while managing the shop and abused her. The deceased denying the pavement of any excess change to any customer, retorted, as a result of which there was a sudden quarrel. The accused, in a fit of anger, picked up the iron weight of 200 grams (M.O. 1) and hit with it on the head of the deceased only once, as a result of which she fell down with a bleeding injury crying aloud. The accused ran away from his shop. The accused, in a fit of anger, picked up the iron weight of 200 grams (M.O. 1) and hit with it on the head of the deceased only once, as a result of which she fell down with a bleeding injury crying aloud. The accused ran away from his shop. On hearing the cries of the deceased, D. Satyavathi and E. Bhagyamma, the neighbours came to the scene and rendered first aid to the deceased who died at about 6.30 P.M. and considering the evidence adduced by the prosecution, particularly P.W. 5, the Woman Assistant Surgeon, Government Hospital, Amalapuram, who conducted the postmortem examination and deposed that she was not certain or definite that the death of the deceased would have been due to shock and the injury is simple in nature, the Division Bench of Andhra Pradesh High Court held that the medical evidence, therefore, does not support the prosecution case that the deceased died as a result of the injury caused to her. Nor is there evidence to the effect that the injury caused to the deceased is such that it is likely to cause the death of the deceased and in the circumstances, the accused cannot safely be convicted for the offence of murder or culpable homicide not amounting to murder punishable under Sections 302 or 304, IPC. The proper conviction of the Respondent is for the offence of causing simple injury to the deceased, punishable under Section 323, IPC and accordingly, the conviction of the Respondent accused for the offence under Section 323, IPC passed by the Trial Court was confirmed and the accused was sentenced to under R.I. for six months. 26. In the case of Smti. Sridevi v. State 1974 Cri. L.J. 126, a Division Bench of the Allahabad High Court, considering the prosecution case, inter alia, that the Appellant assaulted the deceased who was her husband, at about mid night between 3/4th June, 1969 with brick in village Suphipur inside the house of Gyasi, the uncle of the deceased, which resulted in his death on the spot and the evidence of the prosecution witnesses including the evidence of Dr. Chandra Sekhar Tripathi, who conducted the postmortem examination, observed that "we have no hesitation in saying that we are faced with an extra-ordinary situation. Chandra Sekhar Tripathi, who conducted the postmortem examination, observed that "we have no hesitation in saying that we are faced with an extra-ordinary situation. We have no doubt in our minds that the death of the deceased took place either immediately after he was assaulted with a brick by the Appellant or soon thereafter but we cannot hold the Appellant guilty either of murder or of culpable homicide not amounting to murder as, according to Dr. Tripathi, the injuries found on the body of the deceased were simple in nature and the cause of death of the deceased could not be determined. It, therefore, clearly means that the injuries inflicted by the Appellant were neither sufficient in the ordinary course of nature to cause death nor were they likely to cause death. The death of the deceased did not take place as a result of the injuries received by him but took place on account of some unknown reason. The Appellant can therefore only be held guilty under Section 323, IPC for causing simple injuries to the deceased." The Division Bench accordingly allow the appeal in part and set aside the conviction and sentence of the Appellant under Section 302, IPC and convicted her under Section 323, IPC and sentenced her to one year's R.I. 27. After going through the decision cited above by the learned Counsel for the Appellant and the law reports as discussed above, and the submissions of the learned Additional Public Prosecutor, this Court is of the view that mere death of a person by Anr. person does not automatically come within the purview of murder under Section 300 and culpable homicide under Section 299, IPC for which punishment is prescribed under Sections 302 and 304, IPC respectively. For conclusion or to come within the purview of the aforesaid offence, for such murder the accused is to act with prior intention of knowledge of causing death and/or such-bodily injury as is likely to cause death, Which is totally absent in the evidence of the prosecution witnesses. Even the doctor (P.W. 10) who conducted the autopsy on the body of the deceased having history of assault did not definitely state anywhere in his statement that the cardio respiratory failure of the deceased was caused due to the result of the alleged assault of the accused. Even the doctor (P.W. 10) who conducted the autopsy on the body of the deceased having history of assault did not definitely state anywhere in his statement that the cardio respiratory failure of the deceased was caused due to the result of the alleged assault of the accused. In his deposition, he stated that an old man of 75 years like the deceased Nani Gopal may die if he falls on a hard substance. He also stated that a man like the deceased Nani Gopal may die due to sudden shock. But he did not definitely state when he opined that the death of the deceased was caused due to cardio respiratory failure, that such cardio respiratory failure was the result of either the assault on the body of the deceased by the accused Appellant Manik or the sudden shock is the result of such assault. He had even also not stated that the said cardio respiratory failure and the sudden shock of the deceased was the result of falling on the hard substance. Hence, a question may arise whether the death of the deceased is really the result of such falling on the hard substance or due to sudden shock of the deceased and that those were the result of alleged kicking of the accused on the chest of the deceased. Unless the aforesaid question is answered in affirmative way or a definite conclusion is given by the doctor, it would not be proper for a Court to straightway convict a person like the accused Appellant for his alleged act of kicking on the chest of the deceased under Section 304 IPC, unless a specific case is made out pointedly showing that the act of the accused Appellant was done with the knowledge that he was likely to cause the death of the deceased. 28. In Kadapagunta Swaminatha Reddy v. State of Andhra Pradesh 1996 Cri. 28. In Kadapagunta Swaminatha Reddy v. State of Andhra Pradesh 1996 Cri. L.J. 1387, the learned Single Judge of the Andhra Pradesh High Court also examined a similar question as in the instant case as to whether the accused had inflicted the alleged injuries on the person of the deceased with knowledge they were likely to cause death and the learned Single Judge observed in para-7 as follows: There is nothing on record in regard to the injuries found on the person of the deceased pointedly to show that the act of the accused was done with the knowledge that he was likely to cause his death. True, death was the resultant, but this resultant could not be attributed to the knowledge of the accused because of the obvious fact that the alleged injuries found on the person of the deceased were not such so as to constitute knowledge on the part of the accused. In an offence punishable under Section 304, Part-II, IPC 'knowledge' is an important element, but I find, that this is missing in the instant case, and hence, it remains simplicitor an offence of 'voluntarily causing hurt' as defined under Section 321 of the Indian Penal Code and punishable under Section 323 of the IPC. Thus, I am of the opinion, that in the instant case, only an offence punishable under Section 323 of the IPC is made out against the accused-Appellant. 29. In the instant case also, as already discussed, there is no such evidence from which it can be found that the alleged injuries on the person of the deceased was caused by the accused Appellant with knowledge that such bodily injury was likely to cause death and when there is no evidence that the death of the deceased was caused due to the alleged assault on the person of the deceased by the accused, rather medical officer specifically stated that there was no grievous injury except abrasion as mentioned hereinabove, it would not be proper for a Court to punish a person like the accused Appellant under Section 304, IPC where knowledge is an important element which is absent in the instant case. Hence, the presumption should be in favour of the accused Appellant as there is a doubt in the mind of this Court regarding the cause of death of the deceased. Hence, the presumption should be in favour of the accused Appellant as there is a doubt in the mind of this Court regarding the cause of death of the deceased. Therefore, it would be proper to come to the conclusion that the accused Appellant by way of alleged kicking on the chest of the deceased committed an offence simplicitor "voluntarily causing hurt" as defined under Section321 of the IPC which is punishable under Section 323 of IPC instead of Section 304 of the IPC. 30. In the result, the orders of conviction and sentence of the accused Appellant for an offence under Section 304, of the Indian Penal Code passed by the learned Additional Sessions Judge, West Tripura, Agartala are set aside and, instead, he is convicted for the offence punishable under Section 323, IPC and sentenced to undergo R.I. for the period which he already suffered with a fine of Rs. 1,000/-, in default to undergo simple imprisonment for a period of one months. 31. Regarding the conviction under Section 448 IPC and sentence passed by the learned Trial Court, this Court is of the opinion that after considering the evidence on record, such conviction and sentence does not require any interference. Hence the conviction under Section 448 IPC and the sentence on the said offence as passed by the Trial Court is maintained. 32. Appeal is partly allowed to the extent indicated above. As the accused Appellant is on bail at present, he shall surrender before the Trial Court, if fine money is not deposited within a period of fifteen days from today and if the accused Appellant either fails to deposit the fine amount or to surrender before the Trial Court within the aforesaid period, then the Trial Court shall take all necessary steps to take him into custody to serve out the sentence passed by this Court. The fine money, if realised, will be paid to an orphan house run by the Social Welfare Department of Government of Tripura and the bail bond of the accused Appellant shall stand discharged. 33. Send down the L.C. records immediately.