JUDGMENT 1. THE appellant Shyam Sundar Karmakar, the original accused No. 1, was charged and tried for offence under Section 304 Part I/34 of I.P.C. in the Court of learned 2nd Additional Sessions Judge at Bankura in Sessions Trial No. 2 of 1987. THE appellant was found not guilty for offence under Section 304 Part I/34, I.P.C. but found guilty and convicted for committing an offence under Section 304 Part N/34 of the I.P.C. and was sentenced to suffer R.I. for 5 years and to pay a fine of Rs. 2,000/-. In default of payment of fine, he was to suffer R.I. for 6 more months. Smt. Mira Karmakar another accused in that trial, was, however, found not guilty of any offence and, accordingly, was acquitted from the charge. 2. SUCCINCTLY, the case of the prosecution is stated below : (a) On 10.7.1985 at about 12.30 hours, an altercation cropped up between Saktibala Pal (P.W. 5) and Mira Karmakar over a petty matter. During continuance of that altercation, Rabindranath Pal appeared and intervened. Mira Karmakar being furious slapped Rabindranath and the minor sons of Mira pelted brickbats on Rabiridranath. The appellant Shyam Sundar Karmakar appeared in the scene also and joined his wife Mira and minor sons. He also hit Rabindranath with a brickbats on his head and thereby caused head injury. Rabindranath fall on the ground with profuse bleeding. Rabindranah was taken to his house first of all and attended by one compounder. Thereafter, he has taken to B. S. Medical College and Hospital and was admitted there. On the next day i.e. on 11.7.1985, at about 5.30 P.M., Rabindranath succumbed to his injuries. b) Dwijendra Nath Pal (P.W. 8) the brother of deceased Rabindranath Pal lodged one F.I.R. with Bankura Police Station and accordingly, Bankura Police Station case No. 15 dated 11.7.85 was registered and started against the appellant Shyam Sundar Karmakar and his wife Mira under Section 304/34, I.P.C. The case was investigated into. On completion of investigation the Investing Officer submitted charge-sheet on 8.8.1985 for prosecuting the appellant and his wife Mira under Section 304/34, I.P.C. (e) The case was tried by the learned Additional Sessions Judge, 2nd Court at Bankura. On completion of investigation the Investing Officer submitted charge-sheet on 8.8.1985 for prosecuting the appellant and his wife Mira under Section 304/34, I.P.C. (e) The case was tried by the learned Additional Sessions Judge, 2nd Court at Bankura. Upon consideration of materials placed before him, the learned Court framed charge under Section 304/34, I.P.C. against the appellant and his wife Mira for committing culpable homicide not amounting to murder by causing death of Rabindranath Pal. The appellant and his wife denied the entire case of the prosecution and accordingly, the Trial commenced. In course of the Trial, prosecution examined as many as 13 witnesses. Some documents including the original F.I.R., injury reports, seizure list have been marked exhibit on behalf of the prosecution. No witnesses was examined nor any document was admitted into evidence on behalf of the appellant. The learned trial Court, upon consideration of the oral as well as documentary evidence found that the prosecution proved the case against appellant Shyam Sundar Karmakar for committing an offence under Section 304, Part II, I.P.C. and accordingly passed the sentence mentioned earlier. Being aggrieved by the said order of conviction and sentence passed on 27.2.1988, this appeal has been filed. Mr. Asok Biswas, the learned Counsel appearing for the appellant has made five fold argument mentioned below :? i) that the learned Court failed to appreciate the evidence on record properly; ii) that the learned Court was oblivious of the most important fact that the actual F.I.R. was never placed before the Court and as such, the Court was not in a position to know the actual state of affairs mentioned therein; iii) that the learned Court relied on the evidence of P.W. 4 mainly which is full of discrepancies and not at all trustworthy; iv) that the learned Court ignored the opinion of the Doctor who conducted the post-mortem on the dead body of the deceased to the effect that cause of death might be for ordinary falling on hard and rough substance and ; v) that the learned Court once opined that in the fitness of a circumstances and imprisonment for 3 years with a fine of Rs. 2,000/- would meet the ends of justice but, at the same time, recorded sentence to suffer R.I. for 5 years with a fine of Rs. 2,000/-. 2,000/- would meet the ends of justice but, at the same time, recorded sentence to suffer R.I. for 5 years with a fine of Rs. 2,000/-. The appellant prayed for setting aside of the order of conviction and sentence passed by the learned trial Court. 3. MR. Abijit Adhya, the learned Counsel appearing for the respondent, State of West Bengal contended that the oral testimonies of P.W. 4 Bharmar Dey, a local man and P.W. 5 Saktibala Pal wife of deceased Rabindranath Pal altogether has supported the prosecution case. The other witnesses examined on behalf of the prosecution was also found credible and trustworthy. The death of Rabindranath Pal was found on post-mortem homicidal and ante-mortem in nature. The fact that the appellant hit him on his head with a brickbats has been established by cogent and satisfactory evidence. Therefore, the findings of the learned trial Court can not be said to be incorrect. 4. MR. Adhya, however, has failed to explain the point No. II raised by the learned Counsel appearing for the appellant. He has submitted that the learned Court in the judgment under challenge has sufficiently discussed that issue which can well be accepted in this appeal. He has further stated that since the appellant did not raise any question regarding cause of death of Rabindranath Pal in course of cross-examination of witnesses, the appellant can not take any plea in this appeal as to actual cause of death of the deceased. I have carefully gone through the evidence adduced on behalf of the prosecution. The P.W. 1 is Doctor S. C. Majumder who conducted the post-mortem on the dead body of Rabindranath Pal. On 12.7.1985 i.e. the next date the Rabindranath Pal died. He found as many as six injuries which were : i) Minute abrasion over back of right elbow. ii) Abrasion 1/2" x 1/2" over upper part of back of abdomen at midline. iii) Several minute abrasion over the mid-part of back of abdomen on left side. iv) Abrasion 1/2" x 1/2" over the outer part of left scapula. v) One minute abrasion over right side of front of chest at its mid-part. vi) One lacerated wound 4" x 2" x scalp placed over upper part of occipital region on right side. 5. iii) Several minute abrasion over the mid-part of back of abdomen on left side. iv) Abrasion 1/2" x 1/2" over the outer part of left scapula. v) One minute abrasion over right side of front of chest at its mid-part. vi) One lacerated wound 4" x 2" x scalp placed over upper part of occipital region on right side. 5. AMONGST the injuries above, the most fatal injury appears to be the injury No. 6 i.e. one lacerated wound 4" x 2" x scalp placed over upper part of occipital region on right side. From the cross-examination of the P.W, 1 it appears that he opined that the injury No. 6 might be caused as a result of a fall over a hard and rough substance provided the impact of the fall was very heavy. The P.W. 2 one of the nephew of the deceased deposed that when he reached the place of occurrence he found his uncle Rabindranath Pal was lying on the ground with bleeding injuries on his head. The P.W. 3 is also a nephew of the deceased. He found is uncle was lying on the ground. The P.W. 4 a local man also found the deceased lying on the ground. The P.W. 5 the wife of the deceased stated that her husband was hit with a brickbats on his head and as a result, he fell on the ground unconsciously. There was bleeding on his mouth and head. Evidence of the witnesses above altogether indicates that the deceased died because of the injuries sustained by him. According to P.W. 1 that the Doctor who conducted the post-mortem, the injury No. 6 was sufficient enough to cause death of a person. In fact, the appellant as defense did not challenge the evidence of the P.W. 1 that the death of Rabindranath Pal was homicidal and ante-mortem in nature. So, it can be said without hesitation that Rabindranath died due to injuries sustained by him and his death was homicidal and ante-mortem in nature. 6. THE evidence of P.W. 1 was accepted by the trial Court sacrosanct excepting the part of cross-examination that the injury No. 6 might have caused owing to falling on hard and rough substance with heavy impact. Wonderingly enough, the post-mortem report was not placed before the Trial Judge by the prosecution. 6. THE evidence of P.W. 1 was accepted by the trial Court sacrosanct excepting the part of cross-examination that the injury No. 6 might have caused owing to falling on hard and rough substance with heavy impact. Wonderingly enough, the post-mortem report was not placed before the Trial Judge by the prosecution. The said report alleged to have been prepared and signed by the P.W. 1 was neither admitted into evidence nor marked as exhibits on behalf of the prosecution. In absence of the postmortem report it is really hard and unrealistic to judge the statement of the P.W. 1 so far as it relates to cause of death of the deceased. Be that as it may, for the sake of argument we accept that the Rabindranath died because of the injury No. 6 which might have caused by ordinary fall on hard and enough substance with heavy impact or the injury caused with brickbats by the appellant. This matter will be discussed after ward. The P.W. 2 stated in the trial Court that hearing about a quarrel he rushed to the place of occurrence and found Saktibala P.W. 5 and Mira Karmakar were quarreling with each other while Rabindrnath was lying on the ground with bleeding injury on his head. He did not find to any one to assault his uncle. Although the P.W. 2 was an ocular witness, he did not state that the appellant hit his uncle with a brickbats on his head and as a result, he fell on the ground and sustained severe bleeding injury on his head. 7. THE P.W. 3, one of the nephews of the deceased also rushed to the place of occurrence hearing the shouting "assaulted assaulted" and found his uncle was lying on the ground. Falaram and Prasanta were standing with brickbats in their hands. He also stated that he found Falaram to hit his uncle with brickbats on his chest. But, he did not find any other person to assault his uncle. 8. THE P.W.4 who claimed to be an eye-witness of the incident sated that at the relevant date and time, he was taking meal in his house which was situated a little away from the place of occurrence. There were four houses in between his house and place of occurrence. He stated that he found Saktibala and Mira were quarreling. 8. THE P.W.4 who claimed to be an eye-witness of the incident sated that at the relevant date and time, he was taking meal in his house which was situated a little away from the place of occurrence. There were four houses in between his house and place of occurrence. He stated that he found Saktibala and Mira were quarreling. Rabindranath Pal i.e. the deceased appeared in the scene and started abusing in filthy language. Being unbearable, Mira slapped Rabi. Rabi attempted to kick her unsuccessfully. He continued to abuse in filthy languages. THE appellant hit Rabi with a brickbats on his head. Rabi then fell on the ground. None else assaulted Rabi. On plain reading of the statements made by the P.W. 4 in his examination in chief shows clearly that he watched the incident from his house. No where within the four corners in his deposition he stated that he appeared in the scene while the incident was going on and in his presence the appellant hit Rabi with a brickbats on his head. His statement in cross-examination that "when I went there I find my uncle Rabi lying on the ground" indicates clearly that he reached the place of occurrence after the incident. He did not disclose the incident to any one before he deposed in Court. He went back to his shop at 01.20 P.M. directly from his house. The evidence of P.W. 4 does not corroborate the statement of P.W. 3 who rushed to the place of occurrence hearing the hue and cry. According to the P.W. 3, when he reached the place of occurrence he found the deceased lying on the ground and Falaram and Prasanta were standing with brickbats in their hands. He found none but Falaram to hit the deceased. The statements of the P.W. 3 who had been to the place of occurrence do not corroborate the statement of the P.W. 4 who did not rush to the place of occurrence hearing the alarm. That being the evidence of the P.W. 4, it can hardly be accepted sacrosanct. The prosecution relied on the statement of the P.W. 5 also. The P.W. 5 is the wife of deceased Rabindranath. She stated that she was having a quarrel with Mira and then Rabindranath appeared and intervened but was assaulted by Mira and her two sons with brickbats. The prosecution relied on the statement of the P.W. 5 also. The P.W. 5 is the wife of deceased Rabindranath. She stated that she was having a quarrel with Mira and then Rabindranath appeared and intervened but was assaulted by Mira and her two sons with brickbats. She further stated that the appellant who happens to be the husband of Mira also bit Rabindranath with a brickbats on his head and, as a result, Rabindranath fell down on the ground unconscious. In her cross-examination, she stated that there was a mutual fitting between herself and Mira and, as a result, she fell on the ground and before she stood up, her husband was assaulted by the appellant. When she fall down, Mira started assaulting her. In such a situation, it is really hard to believe the statement of P.W. 5 that she found the appellant to hit the deceased with brickbats on his head because she herself was lying on the ground and was being beaten up by Mira at that time. This apart, the two sons and the appellant i.e. Falaram and Prasanta also hit the deceased with brickbats. That being so, it was not possible for the P.W. 5 to state preciously that the appellant in fact pelted brickbats which hit the head of the deceased causing the injury No. 6 as stated by the P.W. 1 resulting death of the deceased. If the evidence of P.W. 5 is scanned properly, it can well be found that there are major discrepancies in her evidence and the evidence of another ocular witness, such as, the P.W. 3. The P.W. 3 has stated no where that Saktibala fell on the ground and Mira, thereafter, assaulted her and in the mean time the appellant hit the deceased with a brickbat on his head. In fact, the P.W. 3 found none but Falaram to hit the deceased with brickbat. On overall appreciation of the oral evidence of the P.Ws. 3 and 5, I find major discrepancies as to the manner in which the alleged incident took place. Their evidence can not be said to be unimpeachable and worthy of credence. 9. IT is fact that an incident of quarrel had taken place and that had been witnessed by the P.W. 2, P.W. 3 and P.W. 4 as well as the P.W. 5 herself. Their evidence can not be said to be unimpeachable and worthy of credence. 9. IT is fact that an incident of quarrel had taken place and that had been witnessed by the P.W. 2, P.W. 3 and P.W. 4 as well as the P.W. 5 herself. it is clear from the evidence of the P.W. 5 that there was a mutual fitting amongst the members of the two families. In course of said mutual fitting, the P.W. 5 was also assaulted when she fell down. Her husband, the deceased appeared in the scene but behaved abnormally and hurled filthy languages continuously towards the members of the appellant. He was slapped and also hit by brickbats. One of the brickbats hit his head and caused the injury No. 6. He fell on the ground also. These facts have been stated, more or less, in harmony by all the witnesses. But it can not be said with certainty that the brickbat hit the head of the deceased was thrown by none but the appellant. Falaram and Prasanta also pelted brickbats that might have caused injuries on the body of the deceased. IT might be that one of such brickbats pelted by Falaram and Prasanta caused the injury No. 6. There are many lose ends in the oral testimonies of the P.W. 3, P.W. 4 and P.W. 5 which give rise to doubt as to whether the appellant had actually caused the injury No. 6 or not. 10. ONE evital point has been raised 'by Mr. Biswas, the learned Counsel appearing for the appellant, that the prosecution suppressed the original F.I.R. in this case. He has drawn the attention of this Court to the statement of P.W. 5 made in her cross-examination. The P.W. 5 in her cross-examination stated that she and Tapan went to the police station on the next morning and narrated the incident to the police officer who recorded her statement. She also stated that she put her Left Thumb impression on that statement recorded by the police officer. The F.I.R. which has been marked as Exhibit 1 shows clearly that the incident was reported on 11.7.1985 at 7 P.M. It was lodged by the P.W. 8. She also stated that she put her Left Thumb impression on that statement recorded by the police officer. The F.I.R. which has been marked as Exhibit 1 shows clearly that the incident was reported on 11.7.1985 at 7 P.M. It was lodged by the P.W. 8. That F.I.R. he lodged was written by said Tapan who accompanied the P.W. 5 to the police station in the morning of same date when the incident was recorded by police officer of the police station. So, it is clear from the evidence of P.W. 5 and P.W. 8 as well as the Exhibit 1 that another F.I.R. was lodged in the morning of the same date by P.W. 5 which was reduced in writing and where on the Left Thump impression of the P.W. 5 was taken. That F.I.R. was not placed before the Court. The learned trial Court tried to analyse the defect in his judgment which, in my view, is not at all reasonable and satisfactory. To be stated preciously, the learned trial Court skipped that point raised by the defense. So, there is a case of suppression of F.I.R. which, in my opinion is fatal to the prosecution case. In this context, the decision of the Hon'ble Apex Court reported in AIR 1981 Supreme Court 1230 can well be referred to. In the case in hand, the original F.I.R. has been suppressed. The prosecution failed to produce the F.I.R. book in the Court also. The general diary of the police station was also not produced. In view of the decision of the Hon'ble Apex Court, in such a case, prosecution case becomes suspicious. Although the post-mortem report has neither been admitted into evidence nor marked exhibit, I find that the P.W, 1 being the Doctor who conducted the post-mortem on the dead body of the deceased, came to a conclusion that the injury No. 6 was sufficient enough to cause death of the deceased. I find that in his cross-examination, the P.W. 1 also expressed his opinion that the injury No. 6 might be caused by falling on hard and rough substance with heavy impact. The deceased, as it appears from the evidence, was thinly built aged man. It is also found that he fell on the ground either because of hit on his head or for any other reason. The deceased, as it appears from the evidence, was thinly built aged man. It is also found that he fell on the ground either because of hit on his head or for any other reason. When he fell on the ground suddenly it can be taken for granted that the impact was heavy. Therefore, there can not be any conclusion with certainty that the injury No. 6 was caused and only caused due to hitting with a brickbat. The possibility of getting that injury by falling on the road (place of occurrence) which was hard and rough can not be overruled. This fact also creates suspicion as to cause of death of the deceased. 11. I have carefully considered the entire evidence of the prosecution as well as the findings of the learned Court. In my estimate, there are major discrepancies in the statements of P.W. 2, P.W. 3, P.W. 4 and P.W. 5 regarding the incident. There is suppression of the original F.I.R. contents of which remained unknown. There is also scope of debate as to cause of death of the deceased. It is also not clear satisfactorily from the evidence that the appellant had actually hit the deceased with a brickbat on his head and that caused the injury No. 6. Taking all this factors together, I am of opinion that the learned trial Court was not at all correct in recording conviction of the appellant. 12. IN view of discussion above, I find that the respondent, State of West Bengal being the prosecution failed to establish the case against the appellant beyond reasonable doubt. The judgment of conviction and sentence passed by the learned trial Court not being sustainable is liable to be set aside. Accordingly, the appellant is found not guilty to the offence under Section 304 Part II of the I.P.C. and acquitted therefrom. 13. THE appeal succeeds and is disposed of. 14. THE copy of judgment and the L.C.R. be sent to the learned trial Court.