Judgment : ASHIM KUMAR BANERJEE. J: 1. FACTS: - Buka @ Ramnath Karmakar was the step brother of Amulya Karmakar. The victim Amulya Karmakar was well-known for his choreography in Chhou Dance. He had his own team wherefrom he was driven out. He was quarrelsome and used to be under influence of liquor. On March 9, 2003, the family members of Amulya and Buka were away from the village to attend a relative’s wedding. Both of them were alone in the house. On a trifle issue on the question of lending of the bicycle belonging to Amulya, they caught up a quarrel. Buka hit Amulya with Chhar (thin iron rod). Amulya succumbed to the injury. Out of fear, Buka fled away from the place of occurrence. He went to PW-8 for shelter who refused to give him shelter and asked him to surrender before the police. According to PW-8 Buka made an extra judicial confession before them (PW-8 to 11). One Tapan Mahato, a villager being PW-1 lodged an FIR with the Police. The Police took cognizance and arrested Buka after three/four days. Buka pleaded innocence and opted to be tried. 2. CHARGE:- The learned sessions Judge, Purulia framed the charge accusing Buka under Section 302 of the Indian Penal Code. 3. EVIDENCE:- PW-1 (Tapan Mahato): - Tapan Mahato was the complainant. He lodged the FIR on March 9, 2003. At that time he was a member of Ghonga Gram Panchayat. PW-2 (Kumbhakarna Mahato):- Kumbhakarna was a villager. He was a post-occurrence witness. He found the dead body of Amulya. Police held inquest and also searched the house of Buka but in vain. Subsequently, in presence of Buka the offending weapon (Chhar) was seized. Buka confessed his guilt before the Investigating Officer. The Officer in-charge told him that Buka had murdered Amulya. He however did not notice Buka committing offence. After the incident Buka came to him and confessed that there had been a fight between Amulya and him. Thereafter, he rushed to the place of occurrence and found the dead body of Amulya. The Investigating Officer arrested Buka after three days of the incident. PW-3 (Birbal Mahato):- Birbal was also a villager. While he was washing his hand, feet and mouth in the Bandh (Pond) he saw Amulya and Buka quarrelling. He went to his house. Thereafter, he rushed to the place of occurrence and found the dead body of Amulya. The Investigating Officer arrested Buka after three days of the incident. PW-3 (Birbal Mahato):- Birbal was also a villager. While he was washing his hand, feet and mouth in the Bandh (Pond) he saw Amulya and Buka quarrelling. He went to his house. On the way, he met his son Amit who informed that Buka murdered Amulya and ran away. He found the dead body of Amulya lying on the path. After three/four days the Officer in-charge arrested Buka. He told the Investigating Officer that on the date of the incident he saw Buka and Amulya quarrelling while he was washing his hands in the pond. Prior to the arrival of the Police he could not see any mark of injury on the person of Amulya as he was standing far away from the dead body. PW-4 (Bhadari Mahato): - He stated to the Investigating Officer that he had seen Amulya using filthy language to Buka and there had been quarrel between them. Buka assaulted Amulya by an iron rod on his head. Amulya sustained severe bleeding injury on his face and other parts of his body. The Police seized blood stained earth and a pair of sleepers belonging to Amulya. He witnessed the seizure and signed the seizure list. PW-5 (Harku Mahato):- Hearing alarm, witness came out of his house. He heard villagers mentioning about the murder of Amulya by Buka. In cross-examination the witness deposed that Amulya was alcoholic. On the fateful day he was under the influence of liquor and took up quarrel with various persons. Amulya was a member of Chhou Dance Party. Long before he was driven out from the Group. PW- 6 (Amit Mahato):- The witness was the son of Birbal Mahato (PW-3) above named. He corroborated other witnesses including his father. In addition he deposed that Buka was not willing to give cycle to Amulya despite his persistent demand. The witness was a minor having seven years of age. Hence oath was not administered to him. The learned sessions Judge recorded that his intelligence was satisfactory. PW-7 (Bhanu Karmakar):- She was the widow of Amulya. She was out for the purpose of attending a wedding along with the family members including the family members of Buka. The witness was a minor having seven years of age. Hence oath was not administered to him. The learned sessions Judge recorded that his intelligence was satisfactory. PW-7 (Bhanu Karmakar):- She was the widow of Amulya. She was out for the purpose of attending a wedding along with the family members including the family members of Buka. Upon her return Amit and Sadhu informed her that Buka had murdered Amulya. She became senseless. She however did not inform the Investigating Officer about her source of information regarding the murder of Amulya. PW-8 (Dhrubalal Mahato):- The witness along with Kanku, Sadhu and Bikash were the night-guards of Barabandh. At about 8/9 p.m. on that night the accused approached them and requested for a shelter. The accused confessed that he had murdered Amulya. The witness refused him shelter when the accused left for an unknown destination. PW-9 (Bikash Chandra Mahato):- He corroborated PW-8 Dhrubalal Mahato. The witness deposed that Amulya had been murdered. Victim was a good Chhou player. Occasionally, Victim used to take liquor. PW-10 (Khaku Mahato):- Khaku did not say anything relevant. PW-11 (Sadhu Mahato):- Sadhu deposed that Buka had murdered Amulya. While coming back to his house the witness found Buka assaulting Amulya with iron rod, Amulya fell down and died. Then the witness ran to his house out of fear. The witness informed his father Harku Mahato and uncle Birbal. He also deposed that Amulya was in the habit of quarrelling with the villagers under the influence of liquor and for that reason he was driven out from the Chhou Dance Group. PW-12 (Meghnath Karmakar):- The witness was the elder brother of Amulya. He was also not in the house as he was in the group attending the wedding party. He deposed that Amulya forcibly had taken possession of four kathas of land and there had been litigation on that score. PW-13 (Robi Lochan Mitra):- The witness was the Sub-Inspector attached to Purulia (M) Police Station. On March 28, 2003 he took charge of the investigation from Sri P.C. Patra, Sub-Inspector. Santosh Das was the original Investigation Officer. On his (Santosh) transfer to Kharagpur the witness took up the investigation. He proved the carbon-copy of the challan sending seized article for Forensic Examination. PW-14 (Dr. S.S. Mondal):- The witness was the Autopsy Surgeon. On March 28, 2003 he took charge of the investigation from Sri P.C. Patra, Sub-Inspector. Santosh Das was the original Investigation Officer. On his (Santosh) transfer to Kharagpur the witness took up the investigation. He proved the carbon-copy of the challan sending seized article for Forensic Examination. PW-14 (Dr. S.S. Mondal):- The witness was the Autopsy Surgeon. He conducted the post mortem examination of the dead body brought by constable Madhab Chandra Das. He supported his report and described the injuries mentioned therein as sustained by the victim. He found semi-digested rice in the stomach of the deceased. There was however no other food in the stomach. The injuries were caused by several strokes. PW-15 (Santosh Das):- Santosh Das was the Investigating Officer prior to PW-13 taking over the charge. He gave brief details of the investigation so far carried out by him until he was transferred to Kharagpur. 4. EXAMINATION OF THE ACCUSED: - The learned sessions Judge examined the accused who pleaded his innocence. According to him, Birbal Mahato and Harku Mahato had murdered his elder brother and implicated him. 5. JUDGMENT: - The learned sessions Judge upon consideration of the evidence so discussed above, held the accused guilty of the offence and convicted him under Section 302 of the Indian Penal Code and sentenced him for life coupled with the fine of Rs.5000 and in default to serve out further imprisonment for six months. 6. THIS APPEAL: - Since no lawyer was appointed by the appellant this Court at the initial stage on the request of the appellant from jail engaged Sri Lolit Mohan Dutta, advocate to file the appeal taking assistance of Shri Himangshu Dey, learned senior advocate. Shri Lolit Mohan Dutta was indisposed. Mr. Dey could not appear in absence of Mr. Dutta. Considering such situation we asked Mr. Amajit Dey, learned counsel to appear and argue the appeal on behalf of the appellant. Accordingly Mr. Dey appeared and assisted this Court by arguing on behalf of the appellant. Ms. Minoti Gomes, learned counsel appeared for the prosecution and opposed the appeal. 7. OUR VIEW: - We have considered the rival contentions. We have analyzed the evidence. Taking a sum total of the evidence we find that a victim was a quarrelsome person. He was alcoholic. Although he was a good performing artist of Chhou Dance. Ms. Minoti Gomes, learned counsel appeared for the prosecution and opposed the appeal. 7. OUR VIEW: - We have considered the rival contentions. We have analyzed the evidence. Taking a sum total of the evidence we find that a victim was a quarrelsome person. He was alcoholic. Although he was a good performing artist of Chhou Dance. He was driven out from the Dance Group only because of his ill behaviour and quarrelsome nature. We get a hint of forcible possession of four kathas of land by the victim. We however do not find any co-relation with his death. On the fateful day two brothers were in the house. Others were out to attend the wedding party. On a trifle issue of lending bicycle they got into scuffle followed by physical assault for which the victim received severe injury and died. If we consider the weapon we find “Chhar” is a thin iron rod which in ordinary course could not kill a person. The victim was alcoholic. We do not know his condition of health, at least not transpired in evidence. As per the post mortem report he received several strokes of Chhar which might have caused him death. The Autopsy surgeon mentioned above five injuries principally on the head. Considering such backdrop we are of the view that it was a case of an accident caused due to physical assault made by the accused. It was on the spur of the moment as we do not find any premeditation. The accused did not have any intention to kill the victim, at least we do not find any such evidence on record. We also do not find any specific instance of the past to infer that the relationship between them was strange and/or enemical. In absence of such evidence, it would not be prudent for us to affirm the conviction under Section 302 which must have a definite element of mind-set of the accused. We are not in a position to term this unfortunate death as “murder”. We intend to modify the charge and conviction by altering the charge under Section 302 to Section 304. Question now remains as to whether it would be under Part I of Section 304 or Part II thereof. We are not in a position to term this unfortunate death as “murder”. We intend to modify the charge and conviction by altering the charge under Section 302 to Section 304. Question now remains as to whether it would be under Part I of Section 304 or Part II thereof. From the evidence so discussed above, we are of the view that it was definitely a case of Part II as on the spur of the moment the accused hit the victim with a substance which could not in normal circumstance cause death. Hence, we uphold the conviction of the appellant but for the offence committed under Section 304 Part II of the Indian Penal Code. We modify the sentence by asking the appellant to suffer rigorous imprisonment for seven years coupled with a fine of Rs.5000/- and in default to suffer further imprisonment for one month. In case fine is realised the same may be paid to the family of the victim. 8. RESULT: - The appeal is disposed of with the above modifications. 9. DIRECTION: - Let a modified jail warrant be issued by the appropriate authority. A copy of this Judgment be sent to the correctional home where the accused is suffering his sentence. The period already undergone by him be let off as against the sentence imposed by us by the foregoing judgment. Let the Lower Court Records be sent down along with a copy of this judgment. Urgent xerox certified copy will be given to the parties, if applied for. I agree.