Judgment :- (1.) FACTS: on October 27, 1982 being Bijoya Dashami Day at about 2. 30 A. M. in the night the appellant by the name of Brinda along with one of his friends entered Santoshi Ma Hotel at Nagendra Bazar, Diamond Harbour and demanded two rooms and two young girls from Shri Nakul Chakraborty, the proprietor of the said hotel. Nakul refused to give him room as the hotel was closed on that day. Nakul also expressed his inability to provide any young girl to him. As a retaliation Brinda broke open the lock of the cash box and robbed the money lying in the cash box. He also assaulted Nakul by bamboo stick hitting him on his head. The incident occurred in presence of two ladies namely kamala Bar and Kamala Karmakar being the cook and the maidservant of the said hotel. He also threatened the said ladies with dire consequences in case they divulged the incident to any person. Out of fear Kamala Bar and Kamala karmakar flee away from the hotel without informing anyone of the incident. Nakul was lying unattended in the said hotel having profused bleeding. His son Biswanath on the next day at about 10. 00 A. M. found him lying at the hotel in unconscious condition. He was removed to the primary health centre where the-victim was given first aid. He was then taken to the Bangur Hospital and thereafter the SSKM Hospital where he was declared dead. (2.) ON the next day of occurrence Niva Chakraborty the widow of the victim lodged a written complaint to the Diamond Harbour Police Station. The said written complaint was received by the Police Station at about 10. 05 P. M. when the police started a case under Section 447/325/379 of the Indian Penal code. Subsequently Brinda was arrested and he was charged with the offence under Section 392/397 read with Sections 302 and 34 of the Indian Penal code. The other accompanion could not be apprehended. In the identification parade Brinda was identified both by Kamala Bar and Kamala Karmakar. Brinda pleaded not guilty and demanded trial. (3.) ALTOGETHER sixteen witnesses were examined. Ultimately the learned judge held him guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code and was convicted under Section 325 (2) of the Code of criminal Procedure. Brinda pleaded not guilty and demanded trial. (3.) ALTOGETHER sixteen witnesses were examined. Ultimately the learned judge held him guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code and was convicted under Section 325 (2) of the Code of criminal Procedure. He was imprisoned for life together with a fine of Rs. 6,000. 00/-and in default to suffer two years imprisonment. Hence, this appeal by Brinda. ANALYSIS OF EVIDENCE : (4.) PW-1 and 2 are the widow and the son of the deceased victim. Admittedly they were not present at the time of occurrence. Biswanath deposed that at about 9. 00 A. M. when he went to the hotel to take money from his father he found his father in pool of blood lying at the gate of the hotel. He took his father to the Diamond Harbour Hospital in a Rickshaw Van. According to him, his father was conscious and his father told him that Brinda and Santa were responsible for the offence. Thereafter his father tried to tell him something more but he could not understand what he wanted to say. He took his father to bangur Hospital and thereafter to SSKM Hospital where the Doctor declared him dead. PW-11 was a pan shop owner. He witnessed the altercation between nakul and Brinda when he went to the hotel to deliver biri and cigarette to nakul. PW-5, 6, 7 and 8 were the neighbours. PW-9 was the constable who took the dead body for post mortem examination. PW-12 was the judicial officer who conducted the identification parade and recorded the statement of PW-3 and 4. PW-13 was the Medical Officer who examined the victim at the Diamond harbour Hospital. He deposed that the victim had multiple injury over his head. He was profusedly bleeding. He was brought unconscious. After giving first aid treatment he was transferred to M. R. Bangur Hospital. He also deposed that his son saw his father at about 9 A. M. lying unconscious in the hotel. He opined that injuries might have been caused by hard blunt substance like bamboo. He also deposed in cross-examination that the injuries were caused roughly one hour before his examination. He also deposed that the death might have caused because of profused bleeding as in case the victim remained unattended for more than one hour. He opined that injuries might have been caused by hard blunt substance like bamboo. He also deposed in cross-examination that the injuries were caused roughly one hour before his examination. He also deposed that the death might have caused because of profused bleeding as in case the victim remained unattended for more than one hour. PW-14 and 15 are the Police Officers who investigated the case whereas PW-16 being a Constable deposed that he tried to serve summons upon Dr. M. K. Moitra who conducted the post-mortem examination. However, he could not serve the summons as by that time Dr. Moitra had expired as told to him by his brother. (5.) LET us now closely examine the evidence of PW-3 and 4 stated to be the eye witness to the incident. PW-3, Kamala Bar was a maidservant working in the said hotel. She deposed that on the Bijoya Dashami evening they saw immersion ceremony. After they returned Nakul asked them to serve food. She also deposed that due to Bijoya Dashami the hotel was closed. While she was present at the hotel along with Kamala Karmakar and was serving food to Nakul, Brinda being accompanied by another man came to the hotel and asked Nakui to allot two rooms in the hotel. They also asked Nakul to supply two young girls. Nakul refused to oblige them. As a retaliation Brinda assaulted Nakul with bamboo lathi of the signboard. He hit his head with the lathi just inside the hotel where the cash box was kept. Seeing the assault they flee away out of fear. Nakul fell on the floor. Brinda threatened them that they would kill her if she divulged the incident as a witness. In cross-examination she deposed that at the time of fleeing away she did not shout out of fear. On the following morning she reported the incident to Niva,. the widow of the deceased. She, however, did not go to the Police Station. She also deposed in cross-examination that after the assault Nakul fell on the ground and became unconscious. Kamala Karmakar was the cook of the said hotel. She also corroborated almost in the line with Kamala Bar. She deposed that Brinda was wearing black trouser at the time of incident. In cross-examination she was confronted with the allegation that she had animosity with Brinda on the issue of forceable possession of their land. Kamala Karmakar was the cook of the said hotel. She also corroborated almost in the line with Kamala Bar. She deposed that Brinda was wearing black trouser at the time of incident. In cross-examination she was confronted with the allegation that she had animosity with Brinda on the issue of forceable possession of their land. She, however, denied such suggestion made to her. She also deposed that she did not inform the said incident to anyone except her family members, that too, on the next day. On that night she took shelter in a house after crossing Nagendra Bazar. She, however, deposed in cross-examination that in Annapurna Hotel which was situated opposite to Santoshi Ma Hotel 10/12 employees used to reside. (6.) ANALYSIS OF THE JUDGMENT AND ORDER PASSED BY THE court BELOW : (i) The incident was proved beyond doubt through the evidence of PW-3, 4, 5 and 11. Assault was proved through the Doctor being PW-13. (ii) Dr. M. K. Moitra who held post-mortem examination had expired prior to the holding of the trial. Hence, the postmortem report could not be proved. However, non-filing of the death certificate of Dr. Moitra would not vitiate the entire proceeding. The post-mortem report could have taken in evidence under Section 34 of the Evidence Act by proving the hand writing and signature of Dr. Moitra. However, due to latches on the part of the prosecution the same was not done. (iii) There was ample evidence on record that on the day of Bijoya dashami in 1982 Nakul was murdered. Such fact was proved through the local witnesses. (iv) The concerned constable proved that he had identified the dead body before Dr. Moitra at the time of post-mortem examination. Hence, the contention of the defence that the death was not proved, was rejected. (v) The involvement of Brinda was proved through the evidence of PW-3 and 4 being the eye witnesses to the incident. Such evidence found support from the medical evidence on record. There was no reason why PW-3 would depose falsely. (vi) Similarly the evidence of PW-4 could not render unworthy of credit. (vii) The learned Judge did not find any justification to disbelieve PW-3 and PW-4. The learned Judge also held that they were not interested or tutored witnesses. No interest was disclosed. Their past engagement in the hotel could not per se be taken as interest. (vi) Similarly the evidence of PW-4 could not render unworthy of credit. (vii) The learned Judge did not find any justification to disbelieve PW-3 and PW-4. The learned Judge also held that they were not interested or tutored witnesses. No interest was disclosed. Their past engagement in the hotel could not per se be taken as interest. (viii) Biswanath deposed that his father had disclosed the name of Brinda and Santa when the victim was taken to the Hospital. He was, however, not sure whether he had disclosed such fact to the police or not. (ix) On the medical evidence the learned Judge held that PW-13 did not examine the victim thoroughly and clinically. He only gave first aid and advised Biswanath to shift him to M. R. Bangur Hospital. Hence, his opinion was not based on solid foundation. (x) Nakul was assaulted by Brinda with bamboo stick, hit him on his head and as a result Nakul fell on the floor and died subsequently. Such evidence came out on analysis of the deposition of PW-3 and 4 coupled with the medical evidence of PW-13. (xi) The learned Judge, however, acquitted Brinda from the charge of robbery as according to him no evidence came out to support the charge under Section 392/397 of the Indian Penal Code. (xii) Learned Judge rejected the contention of the defence that the prosecution did not prove the written complaint by producing the writer. (xiii) He also rejected the contention of the defence on the delay of lodging the complaint with the Police Station. He held that the incident took place at about 2.30 A. M. in the night. The victim was found lying with profused bleeding for the first time at 9 A. M. on the next day when biswanath saw him in the hotel. He was then taken from one Hospital to the other and ultimately he was declared dead. So the time spent to save the life of the injured should be taken into account. (xiv) The learned Judge ultimately held the accused guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code. Hence, this appeal. CONTENTION OF THE APPELLANT : (7.) MR. Subir Chowdhury, learned Counsel appearing for the appellant contended as follows :- (i) The identification parade was superfluous as the accused was known to the persons who identified him at the identification parade. Hence, this appeal. CONTENTION OF THE APPELLANT : (7.) MR. Subir Chowdhury, learned Counsel appearing for the appellant contended as follows :- (i) The identification parade was superfluous as the accused was known to the persons who identified him at the identification parade. (ii) The statement made by the PW-3 and 4 before the Police as recorded under Section 164 of the Code of Criminal Procedure could not be relied upon as no one had administered oath to those witnesses under sub-section (5) of section 164 of the Code of Criminal Procedure. (iii) No attempt was made to bring the Doctor then working in SSKM hospital who declared the victim as dead. (iv) The hotel was situated near to the fish market which used to be operated during night. Hence, it was hard to believe that nobody except pw-3 and 4 could come to know of the incident at the alleged time of occurrence. (v) No attempt was made to bring the post-mortem report in evidence. Hence, in absence of post-mortem report it could not be said that the appellant killed him and he was guilty of the offence committed under section 302 of the Indian Penal Code. (vi) No attempt was made to bring the writer of the complaint, (vii) No explanation was offered as to the delay in lodging the FIR. (viii) Inquest was held by the Investigating Officer without any witness. Hence, it could not be relied on in evidence. (ix) PW-11 being the pan shop owner was examined by the Police six days after the incident. Hence, it should have caused suspicion in the mind of the judge before holding the accused guilty of the offence relying upon the evidence of PW-11, (8.) AS and by way of alternative submission Mr. Chowdhury contended that even if this Court would hold that he was guilty of the offence under Section 304 and not section 302 he could not be convicted under Section 304 without proper medical evidence as to the nature of injury. (9.) HE prayed for acquittal of the appellant. (10.) IN support of his contention Mr. Chowdhury relied on the following decision :-(i) All India Reporter, 1974, Supreme Court, Page 2165 (Balak Ram and anr. v. State of U. P.) (ii) All India Reporter, 1975, Supreme Court, Page 27. 4 (Mehtab Singh and Ors. (9.) HE prayed for acquittal of the appellant. (10.) IN support of his contention Mr. Chowdhury relied on the following decision :-(i) All India Reporter, 1974, Supreme Court, Page 2165 (Balak Ram and anr. v. State of U. P.) (ii) All India Reporter, 1975, Supreme Court, Page 27. 4 (Mehtab Singh and Ors. v. The State of Madhya Pradesh) (iii) 1975, Criminal Law Journal, Page 926 (Jhamman v. State of U. P.) (iv) 1975, Criminal Law Journal, Page 1500 (Ram Narain, Jaggar Singh and Ors. v. The State of Punjab) (v) All India Reporter, 1976, Supreme Court, Page 2488 (State of Orissa v. Mr. Brahmananda Nanda) (vi) 2008, Volume - II, CRIME, Page - 333 (Om Prakash and Ors. v. State of Madhya Pradesh) CONTENTION OF THE PROSECTUION : (11.) MR. Rash Behari Mahato, learned Counsel appearing for the prosecution while opposing the appeal contended that the evidence of PW-3 and 4 as corroborated by the medical evidence given by PW-13 was sufficient enough to hold the accused guilty of the offence. The learned Judge rightly held him guilty of the offence and punished him appropriately. In support of his contention Mr. Mahato relied on the Apex Court decision in the case of Thangaia v. State of Tamil Nadu reported in 2005, Supreme Court Cases (Criminal), page -1284. Mr. Mahato prayed for dismissal of the appeal. OUR VIEW : (12.) ON a sum total of the facts that came out in evidence and the arguments made by the parties if we narrow down the scope of the appeal we would find as follows : Admitted Facts ; (13.) NAKUL was the owner of Santoshi Ma Hotel. Kamala Bar and Kamala karmakar were working in the said hotel. Nakul was found unconscious having profused bleeding from his head at about 9. 00 A. M. in the morning of October 28,1982. He was taken to the local Hospital at Diamond Harbour where PW-13 examined him and gave him first aid. He was shifted to Bangur Hospital and then to SSKM Hospital where he was declared dead. Disputed facts : (14.) PROSECUTION Story : According to the prosecution the incident occurred at about 2. 30 A. M. in the night on Bijoya Dashami Day i. e. October 27, 1982. Brinda assaulted Nakul with the help of bamboo stick, as a result nakul sustained head injury having profused bleeding. Disputed facts : (14.) PROSECUTION Story : According to the prosecution the incident occurred at about 2. 30 A. M. in the night on Bijoya Dashami Day i. e. October 27, 1982. Brinda assaulted Nakul with the help of bamboo stick, as a result nakul sustained head injury having profused bleeding. Incident occurred in presence of Kamala Bar and Kamala Karmakar. The incident of altercation just prior to the assault was witnessed by pan shop owner being PW-11. (15.) DEFENCE Story : The appellant did not adduce any evidence. Appellant also did not make any statement either before the Police or before the Court below except giving evasive reply in course of examination held under Section 313 of the Code of Criminal Procedure. It is, however, significant that when the accused was confronted with the deposition of prosecution witnesses to the effect that he visited the hotel on the Bijoya Dashami day he did not specifically deny such fact. (16.) BOTH Kamalas could not be shaken during cross-examination. The defence also could not show any interest of Kamalas while deposing as against the appellant. Hence, presence of Brinda at the time of occurrence in the hotel on the fateful night was proved. If we are to disbelieve Kamalas or PW-11 we must have some cogent reason. The defence, however, could not highlight any reason so as to create suspicion in the mind of Court while evaluating the evidence of Kamalas or the pan shop owner. (17.) HENCE, the fact that Brinda was present at the time of occurrence and he hit Nakul on his head causing injury resulting profused bleeding, was proved. (18.) INCIDENT occurred at about 2. 30 A. M. in the night. PW-13 examined the victim at about 10. 00 A. M. in the next day morning. Hence, the victim was lying unattended for about eight hours. He was given first aid. PW-13 did not examine him thoroughly and referred him to Bangur Hospital. He was then taken to SSKM Hospital. It might have taken another eight to ten hours. So for about sixteen hours the victim was not given any proper medical aid. Hence, the death might have caused due to profused bleeding for about sixteen hours. PW-13 opined that if a person with such multiple injury with profused bleeding remained unattended for more than one hour the person would die due to profused bleeding. So for about sixteen hours the victim was not given any proper medical aid. Hence, the death might have caused due to profused bleeding for about sixteen hours. PW-13 opined that if a person with such multiple injury with profused bleeding remained unattended for more than one hour the person would die due to profused bleeding. If we analyse that statement the logical conclusion would be had there been proper medical treatment administered the life of the victim could have been saved. Unfortunately the post-mortem report could not be tendered in evidence. Hence, it could not be conclusively said that death was due to such assault. Hence, the learned Judge erred in holding the accused guilty of the offence under Section 302. Under Section 300 if the act done by the accused was the cause of the death and if such act was done with the intention of causing death such culpable homicide would amount to murder and would attract the mischief of Section 302. We, thus, hold that the accused could not be held guilty under Section 302 in absence of proper evidence. It is true that mere non-tendering of post-mortem report could not by itself absolve the accused from his liability warranting his acquittal. However, such lacuna of non-tendering of the post-mortem report in evidence must be substituted by cogent evidence wherefrom the Court could come to conclusion that the act done by the accused amounted to murder within the meaning of Section 300. (19.) IF we consider Section 304 we would find that to book the accused under this section evidence must come proving that the act by which the death was caused was done with the intention of causing death or such bodily injury which had caused death but without any intention to cause death. We are sorry to observe that such evidence also did not come during trial. (20.) ON a careful perusal of the evidence we would find that the accused could at best be held guilty of the offence committed under Section 322. (21.) SECTION 322 is quoted below :- "322. Voluntarily causing grievous hurt.-Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said Voluntarily to cause grievous hurt. (21.) SECTION 322 is quoted below :- "322. Voluntarily causing grievous hurt.-Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said Voluntarily to cause grievous hurt. Explanation -A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurl and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. " (22.) ON perusal of the aforesaid section quoted (supra) it would appear that if the accused intended to cause or likely to cause grievous hurt and such act was voluntarily done the accused should be punished under Section 325 for imprisonment for a maximum term of seven years coupled with fine. Grievous hurt was defined which, inter alia, provides permanent disfiguration of the head or any hurt which endangered life. The accused hit the victim on his head with a blunt substance. Such hitting was so intense that it caused prof used bleeding. Had the victim been given immediate medical treatment his life could have been saved. However, hitting the head by a bamboo stick could not mean that the accused wanted to kill him knowingly or unknowingly that such hitting would take his life instantly or so soon thereafter. CONCLUSION : (23.) WE do not find any scope of interference with the finding of the learned Judge. We are, however, of the opinion that he could not be held guilty under Section 302. We, thus, modify the order of the learned Judge to the extent that the accused/appellant should be convicted under Section 322 and be punished under Section 325. (24.) THE sentence is thus modified to the extent that the appellant would be sentenced for seven years coupled with a fine of Rs. 10,000. 00 in default to suffer imprisonment for one year more. (25.) THE period, accused was in custody, should, however, be taken into account. (26.) THE bail granted by this Court is cancelled. The accused is directed to surrender before the Court below. In default, the sureties are directed to produce him in Court. 10,000. 00 in default to suffer imprisonment for one year more. (25.) THE period, accused was in custody, should, however, be taken into account. (26.) THE bail granted by this Court is cancelled. The accused is directed to surrender before the Court below. In default, the sureties are directed to produce him in Court. Let the lower Court records be sent down along with a copy of the foregoing judgment. Learned Court below is directed to issue modified jail warrant. (27.) THE appeal is disposed of accordingly.