JUDGMENT Amit Talukdar, J. 1. THE State of West Bengal has filed this Government Appeal, which is directed against the judgment and order of acquittal dated 06.12.1988 passed by the learned Assistant Sessions Judge, Malda in Sessions Trial No. 36 of 1988. 2. THE learned Assistant Sessions Judge, Malda (hereinafter referred to as the learned Trial Court) acquitted the sole respondent from the charge framed against him in respect of section 304 of the Indian Penal Code. Hence this Appeal. Since as usual, none appeared on behalf of the State-appellant, we requested Shri Biplab Mitra, Senior Panel Lawyer to appear for the State and argue the Appeal, as this is a very old Matter. 3. ALTHOUGH, the Respondent had entered appearance, none chose to represent his case. Since he cannot go unrepresented, more so this being an Order of acquittal, we requested Shri Soubhik Mitter to officiate as Amicus Curiae and assist us in disposing of the appeal. 4. ON the basis of a chargesheet submitted against the sole respondent, he was arrayed in Sessions Trial No. 36 of 1988 to answer the following Charge: "That you on or about the 18th day of August, 1985, at about 22.30n hrs. at Gangabag under E.B.P.S. committed culpable homicide not amounting to murder, causing the death of Baneswar Mondal, and thereby committed an offence punishable under section 304 of the Indian Penal Code and within my cognizance." Since he pleaded not guilty, he was placed on Trial and the prosecution in order to prove its case, examined as many as fourteen witnesses. It would be profitable for the purpose of proper decision to set out the various segments of the witnesses relied upon by the prosecution. 5. P.W.1, Smt. Susama Mondal, happens to be the Author of the F.I.R. (Ext. 1) and the widow of the deceased Baneswar Mondal, whose death forms the subject-matter of discussion in this appeal. 6. P.W.4, Dibakar Mondal, P.W.5, Sudhakar Mondal and P.W.6, Arati Mondal were the children of the deceased. P.W.3, Dilip Dutta and P.W.7, Harendra Kumar Goswami became hostile. 7. P.W.2, Jogesh Mondal was the Rickshaw Puller, who carried the deceased Baneswar to the Sadar Hospital, Malda. 8. P.W.8, N.C. Sarkar, who, at the relevant time, was the Officer- in-Charge of English Bazar Police Station recorded the formal F.I.R.(Ext.1). P.W.3, Dilip Dutta and P.W.7, Harendra Kumar Goswami became hostile. 7. P.W.2, Jogesh Mondal was the Rickshaw Puller, who carried the deceased Baneswar to the Sadar Hospital, Malda. 8. P.W.8, N.C. Sarkar, who, at the relevant time, was the Officer- in-Charge of English Bazar Police Station recorded the formal F.I.R.(Ext.1). P.W.12, D.K. Sanyal, Sub-Inspector of Police, English Bazar Police Station and P.W.13, S.S Roy, Sub-Inspector of Police, English Bazar Police Station investigated the case and made various seizures. 9. P.W.14, Smt. Anubha Ghosh, Assistant Nurse-cum-Midwife at the relevant point of time of the Sadar Hospital, Malda, who proved Emergency Ticket (Ext.7) at the time of admission prepared by one Dr. Roy of the Sadar Hospital, who was not examined. 10. P.W.10, Dr. J. C. Saha, a Surgeon of the Sadar Hospital, Malda treated the deceased from 23.08.1985 to 28.08.1985. P.W.11, Dr. Biswanath Mukherjee, was a private medical practitioner under whom the deceased was being treated between 19.08.1985 to 21.08.1985. He given first aid, as we have noted from the Ext.7 and spoken by P.W.14, the Assistant Staff Nurse of the Sadar Hospital, Malda. 11. THIS is the entire sum and substance of the prosecution evidence relied upon. 12. SHRI Mitra with SHRI Dey for the State-appellant has submitted that in the event the evidence of P.W.1, Susama Mondal, widow of the deceased is believed, there is no scope of proceeding further. According to him, it would be sufficient to set aside the order of acquittal recorded by the learned Trial Court. Not only, Shri Mitra submitted that P.W.1, Susama Mondal was an eye-witness, she was the widow of the deceased and had no scope for her to cause false implication of the respondent. 13. SHRI Mitra further submitted that the learned Trial Court relied very heavily on the question of non examination of the first Medical Officer (one Dr. Aloke Roy), who treated the deceased at the Malda Sadar Hospital at the very first day he received injury (i.e. on 18/08/1985) and submitted that in the event the evidence of P.W.14, Smt. Anubha Ghosh, Assistant Nurse- cum-Midwife is taken into account, it would been seen that she has proved the contents of Emergency Ticket(Ext.7) Ext.7 and the Emergency Register (Ext.6), which shows that on the date of incident the respondent was brought before the Sadar Hospital, Malda and was treated for the injuries, which he has suffered. 14. 14. SHRI Mitra took us through the evidence in great details and was of the view that the deceased received the injury in the manner that has been described by the Prosecution witnesses and he had been treated at the Sadar Hospital, Malda stands established in view of the evidence of P.W.2, Jogesh Mondal, the Rickshaw Puller, who carried him to the Hospital. Shri Mitra further submitted that the learned Trial Court came to a finding that in the absence of any opinion of the Doctors, who treated the deceased that death would have been taken place only on account of the brick bat assault received by the deceased, that would be of no consequence as this question was not put to any of the Medical Officers, who treated the deceased at the Sadar Hospital. 15. SUMMING up his contention, Shri Mitra was of the view that the Order of acquittal recorded by the learned Trial Court was not in accordance with Law and was a result of misappreciation of the material evidence-on- record and is liable to be set aside in this appeal. 16. SHRI Soubhik Mitter, learned Amicus Curiae, who assisted us, has opposed all the contentions forwarded by his learned Counterpart of the State. He has argued that it is by now a well-settled principle governing the field in deciding questions relating to Appeals against Order of acquittal. They are:- Firstly, the Order under Appeal must be perverse; Secondly, it must be a result of misappreciation of evidence and; Thirdly, complete non-application of Judicial mind. 17. LEARNED Amicus Curiae was of the opinion that unless these three cardinal principles have been breached, there is no scope for the Appeal Court to interfere with an Order of acquittal recorded; more so, more than twenty five years ago in the absence of any patent illegality. 18. LEARNED Amicus Curiae has taken utmost pains and has invited us to the entire evidence relied upon by the prosecution and also the Record of the learned Trial Court including the Exhibits. Learned Amicus Curiae submitted that G.D. Entry No. 962 dated 18.08.1985(ExtA) lodged by P.WA, Dibakar Mondal, the son of the deceased, which was anterior in time to the formal F.I.R.(Ext.1) lodged by P.W.1, Susama Mondal, widow of the deceased, did not speak of any allegation against the appellant whatsoever except that there was some assault and one incident took place. 19. 19. LEARNED Amicus put serious emphasis on the said document(Ext.4) and submitted that had there been an actual incident, as submitted by P.W.1, Susama Mondal, widow of the Deceased then obviously, P.W.4, Dibakar Mondal, son of the deceased, who was very much present in the house as dinner was served by his Mother, P.W.1, Susama Mondal, could have noticed the incident and at the first blush come out with the narration of details. 20. FURTHERMORE, learned Amicus was of the view that the Emergency Hospital Register (Ext.6) not having proved by the maker of the same; at best that there was a treatment, can go into evidence but not the contents thereof. As such, learned Amicus submitted that no credence can be attached to the Emergency Hospital Register (Ext.6) relied upon by the prosecution. Wrapping up his entire, submission learned Amicus was of the opinion that the Order of acquittal was well reasoned on the basis of the appreciation of all the evidence and other materials on record and there is hardly any scope for interference by this Court in appeal; more so, after a lapse of so many years. 21. AFTER we have heard the submission of Shri Mitra, learned Senior Panel Lawyer and Shri Soubhik Mitter, learned Amicus, who has been of invaluable assistance to us in deciding the appeal we find that the learned Trial Court has done a very neat job. He has summed up the entire evidence in a very magnificent manner, which, in our opinion, would be difficult to upset and as rightly pointed out by the learned Amicus, in the absence of any material irregularity. 22. AS a First Court of Appeal within the mandate of section 386 of the Code of Criminal Procedure, even though it is against an order of acquittal- we are entitled to re-assess the evidence, as if we are hearing an order of conviction and come to our conclusion, of course, not substituted by the other view, which may have been possible. In such trajectory, we feel the reasoning set out by the learned Trial Court can hardly be interfered with for the following reasons: A) The veracity of the evidence of the widow of the deceased P.W.1, Susama Mondal has been doubted by the learned Trial Court. In our opinion, he has done so rightly. In such trajectory, we feel the reasoning set out by the learned Trial Court can hardly be interfered with for the following reasons: A) The veracity of the evidence of the widow of the deceased P.W.1, Susama Mondal has been doubted by the learned Trial Court. In our opinion, he has done so rightly. First of all, question of identification and the place of occurrence has been described by her only in the F.I.R.(Ext.1) and in substantive evidence, does not match with the Sketch Map (Ext.5) drawn by the Investigating Officer, P.W.13, S.S. Roy. B) P.W.2, Jogesh Mondal, the Rickshaw Puller was not a witness of truth. He has stated that the deceased had disclosed to him on his way to the Sadar Hospital on board his Rickshaw that he was assaulted by the Respondent by a brick bat. But curiously enough, P.W.4, Dibakar Mondal, the son of the deceased, who was accompanying both P.W.2, Jogesh Mondal and the deceased in the same Rickshaw, did not state anything of this nature. As such, it would be rather difficult to accept his version, which rightly the learned Judge has discarded and cannot be taken within the ambit of Sub-section (1) of section 32 of the Evidence Act. C) Even though the Shri Mitra, the learned Senior Panel Lawyer has submitted that in the absence of eliciting the question as to whether the death could have been caused by such injury -we feel there exist an extremely Grey area, which the learned Trial Court, has very correctly noticed. The deceased was hit by a brickbat on 18/08/1985. Immediately thereof, he was shifted to the Sadar Hospital, Malda in the manner which we have noticed hereinabove. He was treated by one Dr. Roy and the Treatment Sheet (Ext.7) and Emergency Hospital Register (Ext.6), which have been proved by P.W.14. Smt. Anubha Ghosh, Assistant Nurse-Cum- Midwife of Sadar Hospital, Malda. 23. FURTHERMORE, in his cross-examination it transpires that P.W.2, Jogesh Mondal, the Rickshaw Puller has admitted that for the first time in the Court he has come out with such version and did not mention about the same during his interrogation before the Investigating Agency. 24. THEREAFTER, being treated by Dr. Aloke Roy he was discharged on the same day. When he returned back home, he was treated by P.W.11, Dr. 24. THEREAFTER, being treated by Dr. Aloke Roy he was discharged on the same day. When he returned back home, he was treated by P.W.11, Dr. Biswanath Mukjerjee, a private Medical Practitioner under whose treatment he was from 19-08.1985 to 21.08.1985. Thereafter since his condition deteriorated, he was again shifted to the Sadar Hospital, Malda and was under the care of P.W.10, Dr. J.C. Saha, Surgeon of Sadar Hospital, Malda from 23/08/ 1985 to 28/08/1985. Ultimately, he met with his end on 29/08/1985. But none of the Medical Officers, who has been examined by the prosecution, ever disclosed that they were reported with regard to the manner of the injury received by the deceased. 25. THIS is a very important aspect, which has to be considered in the light of the objection taken by Shri Mitra, the learned Senior Panel Lawyer. D) Even though P.W.13, Sub-Inspector S.S. Roy, the Investigating Officer had seized the brickbat under a Seizure List (Ext.3), the same could not be produced in Court, without any reason given for the same. As such, the learned Trial Court has rightly come to the conclusion in the absence of Alamat and assessing the size and weight, it cannot be gathered that it is this brickbat, which caused the injury. 26. IF we read this evidence in the light of the cross-examination of the Medical Evidence; at once we come to the opinion that the view expressed by the learned Amicus Curiae is of great substance and death cannot been be slightly attributed to the cause of assault by alleged brickbat by the respondent. It may be that had he received proper treatment, the situation may have been otherwise and the unfortunate end may not have come in such a fashion. E) Furthermore, as rightly pointed out by learned Amicus that P.W.4, Dibakar Mondal and P.W.5, Sudhakar Mondal, who were children of the deceased were very much present at the house when the incident took place as P.W.1, Susama Mondal, their Mother was serving food at the relevant time when their deceased Father received the brickbat injury-but none of them had spoken about the incident in details. F) Lastly, we would again note at the cost of repetition that from first blush, the version given by the prosecution through the eyes of P.W.5, Sudhakar Mondal, Son of the deceased vide G.D. Entry No.962 dated 18.8.1985 does not mention about the date and time of the occurrence. It is simply a narration of assault by the respondent upon his deceased Father. 27. TAKING a wholesome appreciation of the evidence and materials on record in the light of the detailed reasoning given by the learned Trial Court, we are of the considered view that it would not be appropriate to interfere in this appeal by way of setting aside the judgment and order rightly recorded by the learned Trial Court and as such we have no alternative but to dismiss the appeal and maintain the order of acquittal as rendered by the learned Trial Court. 28. APPEAL accordingly, stands dismissed. Respondent is directed to be released from his bail bond forthwith. Before we part, we record our deepest appreciation of the invaluable assistance rendered by the learned Amicus Curiae in a very immaculate fashion. Urgent xerox Certified copy, if applied for, be given to the learned Amicus Curiae only upon compliance of usual formalities.