JUDGMENT P.K. Musahary, J. 1. None appears for the appellant when the matter was called upon. I have heard Mr. K. Munir, learned Addl. P. P. for the State of Assam. 2. The appellant being dissatisfied with and aggrieved by the judgment and order dated 27-9-2002 rendered by the learned Ad hoc Additional Sessions Judge No. 1, Tinsukia in Sessions Case No. 121 (T) of 1999 convicting him, Under Section 304 Part II IPC and sentencing him to undergo R.I. for a period of 7 years with a fine of Rs. 1000/-, in default R.I. for another 1 month, has preferred this appeal Under Section 374(2) Cr. P. C., 1973. 3. The prosecution case in brief is that on 24-5-1999 at about 5 P.M., the accused/appellant caused injuries to Baga Bihiri Bhumiz by assaulting him with lathi and in the following morning at 4 A.M., during treatment at Longswal hospital, he succumbed to injuries. Smt. Ahila Sashi, wife of the deceased, lodged ejahar with the Officer In-charge Makum P. S. and a case was registered Under Section 302 IPC. The police during investigation held inquest over the dead body of the deceased and sent the same for post-mortem examination. After completion of the investigation, charge-sheet was submitted against the accused person Under Section 302 IPC. The learned Chief Judicial Magistrate, Tinsukia committed the case to the Court of Session for trial. 4. On receipt of the case records, the learned Sessions Judge, Tinsukia made over the case to the learned Ad hoc Additional Judge No. 1, Tinsukia who framed the charge against the accused/appellant Under Section 302 IPC to which the accused/appellant pleaded not guilty and claimed to be tried to stand the trial. 5. The prosecution examined as many as 8 witnesses including the informant herself to prove its case. The defence examined none. 6. There is no eye-witness to the alleged occurrence. However, P. W-3 Shri Dhanu Bhumij, nephew of the deceased, deposed that the accused/appellant himself came to the police station and reported that he killed the deceased Baga Bihari but in his deposition this witness again said that the accused did not tell him anything. It appears that the accused/appellant made confessional statement before the Judicial Magistrate Under Section 164 Cr. P. C. (Ext.6). But the accused retracted during trial while making statement Under Section 313 Cr. It appears that the accused/appellant made confessional statement before the Judicial Magistrate Under Section 164 Cr. P. C. (Ext.6). But the accused retracted during trial while making statement Under Section 313 Cr. P. C., by saying that he made the aforesaid statements as per the dictation of the police. The Magistrate Smt. Susmita Khound was examined as P. W-7. She stated that the accused was given sufficient time for reflection and due procedures were observed before recording the statement of the accused which he made voluntarily. However, in cross-examination he stated that "he sustained those injuries as the deceased assaulted him at the time of occurrence." The defence put suggestion which was replied by him "it is not a fact that accused was forced to make the confession and the injuries found on his person is the result of the assault by the police in custody." The evidence of P. W-7 is that the accused person in fact had' an occasion to meet the deceased and he was assaulted by the deceased. Although the accused/appellant did not say that he also countered the physical assault from the deceased, the fact remains that the deceased received serious injuries and succumbed to the injuries within 4 hours. The question is whether this accused/appellant caused any injury to the deceased by hitting him with a lathi. 7. The Medical Officer Dr. Binoy Kr. Phukan, P.W-6, who examined the deceased in the hospital stated that the deceased received injuries on legs, hands and right side of the head and the deceased died in the hospital after half an hour during treatment. 8. Similarly, P. W.-8 Dr. R. Chaliha who conducted the post-mortem examination, stated that he found the following injuries on the person of the deceased: 1. A lacerated injury over the lower third of the left leg measuring 3 x 1 cm with fracture of both labia and fibula. 2. A lacerated wound over the upper thirds, of the left forearm measuring 2 x 1 cm. 3. A lacerated would over the upper third of the forearm measuring 2 x 1 cm. 4. A lacerated wound over the ulner boarder of the left hand measuring 3 x 0.5 cm. 5. A lacerated wound over the vault of the scalp on the right side measuring 3 x 1 cm. 6. Fracture of the 8 to 12 rib on the left side. 4. A lacerated wound over the ulner boarder of the left hand measuring 3 x 0.5 cm. 5. A lacerated wound over the vault of the scalp on the right side measuring 3 x 1 cm. 6. Fracture of the 8 to 12 rib on the left side. Post-mortem report has been exhibited as Ext. 7. According to P. W. 8, the cause of death is due to shock and haemorrhage as a result of injuries sustained. The injuries are ante-mortem being caused by blunt force impact and Homicidal in nature. 9. The Investigating Officer, P. W.-4, Shri Bimal Sonowal, seized a lathi (Ext. 3) from the place of occurrence. It would be appropriate to put the relevant portion of the deposition of P. W.4 which are as follows: ...Witness Ahila Bhumij stated before me that accused had gone to bring her and had a quarrel with her husband and that the accused beat her husband with a lathi. While arresting the accused from his house, I found a lathi there and seized it vide Ext. 3. Ext.3(1) is my signature. 10. The evidence of the Medical Officers P. W. 6 and P. W.8 have corroborated the evidence of the I. O., P. W. 4, inasmuch as in the medical report it has been stated that the death was caused by blunt force impact. The lathi which was seized from the place of occurrence is a blunt weapon and the above injuries found on the body of the deceased fit in the injuries that may be caused by lathi which was used by the accused. Thus, the prosecution has been able to prove that the deceased was done to death by the assault with the said lathi. The relevant question is who has given the lathi blows on the person of the deceased causing his death. 11. As has been discussed earlier, although the accused/appellant retracted his confessional statement Under Section 313 Cr. P. C., he clearly stated that he received the injuries while he was assaulted by the deceased. The natural presumption, therefore, would be that while he was assaulted, he also gave the lathi blows on the head and other parts of the deceased. Although there is no eye-witness to give an account as to how the fight between the accused/appellant and the deceased ensued, it can be said that there was a fight between them. The natural presumption, therefore, would be that while he was assaulted, he also gave the lathi blows on the head and other parts of the deceased. Although there is no eye-witness to give an account as to how the fight between the accused/appellant and the deceased ensued, it can be said that there was a fight between them. There is nothing on record to say that the fight took place all of a sudden but it can be seen that both the accused and the deceased are closely related; the accused being the son-in-law of the deceased. It may also be noted that P. W.3 Dhanu Bhumij is also closely related to the deceased; the accused/appellant being the nephew of the deceased. Similarly, P. W. 2 is also the father of the accused and the deceased is the son-in-law. There is no independent witness. All the non-official witnesses are related to each other and that may be the reason why they subsequently, during trial, resiled from their earlier stand and had to be declared hostile witnesses. They had a compelling reason. It was because they wanted to save accused/appellant. The prosecution cross-examined them but it could not extract anything from them. 12. However, the evidence on record is enough to hold that it was the accused/appellant who caused the injuries to the deceased for which he is liable to conviction. It is to find out whether the accused/appellant had any intention to kill the deceased. In this regard, one may refer to the evidence of P. W. 6,I. O, who clearly stated that it was the accused/appellant who brought the deceased to the hospital for treatment. This is about post-crime conduct of the accused person who had shown good conduct and from such conduct, it can be inferred that he had no intention to kill while hitting or assaulting the deceased. It would be reasonable to hold that the accused/appellant had to fight back or hit back when he was attacked or assaulted by the deceased during the fight. 13. In my considered view, the learned trial Court rightly convicted and sentenced the accused/appellant Under Section 304 IPC as indicated above and no interference with the aforesaid conviction and sentence is called for in appeal. Accordingly, the impugned conviction and sentence is upheld. The appeal fails. 14. 13. In my considered view, the learned trial Court rightly convicted and sentenced the accused/appellant Under Section 304 IPC as indicated above and no interference with the aforesaid conviction and sentence is called for in appeal. Accordingly, the impugned conviction and sentence is upheld. The appeal fails. 14. The accused/appellant shall surrender for serving out the sentence and the learned Court below shall take necessary step if the accused/appellant fails to surrender in accordance with law. 15. Bail bond shall stand cancelled. L. C. R. be sent forthwith.