JUDGMENT Subhasis Talapatra, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 23.07.2009 as passed learned Sessions Judge, West Tripura, Agartala in S.T. (WT/A) No. 70 of 2008, whereby the appellant has been convicted under Section 304 of IPC and sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 10,000/- in default of payment of fine, the appellant has been directed to suffer rigorous imprisonment for further three months. Heard Mr. M.K. Roy, learned counsel appearing for the appellant and Mr. R.C. Debnath, learned special P.P. appearing for the respondent-State. 2. For purpose of appreciating the challenge that has been projected by the appellant, it is required to note the prosecution case briefly. One Sanjoy Deb Barma filed an Ejahar on 30.10.2006 stating that after a quarrel that had ensued between his father and Kala Deb Barma and the appellant, both the accused persons assaulted his father and as a consequence thereof, his father fell down on ground and became unconscious. Subsequently, when his father was brought to Bishramganj hospital by an Auto Rickshaw, the doctor declared his father dead. On the basis of the said Ejahar, Bishramganj P.S. Case No. 50/2006 was registered and investigation was taken up by the police. On completion of the investigation, the charge sheet was filed. On taking cognizance, the case was committed to the Court of the learned Sessions Judge, West Tripura, Agartala, in view of the charges as taken cognizance were triable by the Court of Sessions. Learned Sessions Judge framed the charge against the appellant and one Sri Kala Deb Barma under Section 302 read with Section 34 of IPC to which they denied the allegation and claimed to be tried. In course of trial as many as 14 witnesses were examined by the prosecution. 3. P.W.1, Sri Samir Das, is a doctor, who at the relevant point of time was working as the medical officer in the Bishalgarh Sub-Divisional hospital. He stated that he conducted autopsy on the dead body of the deceased and he found rapture on mosentric artery measuring 12 cm. in length. In his opinion the cause of death was due to shock and haemorrhage following rapture of the spleen and mosentric artery caused by blunt trauma. He also stated that spleen was also found raptured, posterior lateral on the convex surface. in length. In his opinion the cause of death was due to shock and haemorrhage following rapture of the spleen and mosentric artery caused by blunt trauma. He also stated that spleen was also found raptured, posterior lateral on the convex surface. He additionally gave his opinion that such injury can be had if direct hit on the abdomen by any blunt object was caused. However, he admitted that the external abrasion injuries were simple in nature and those injuries can be sustained by any person out of sudden fall. 4. While deposing before the Court, one Sri Narayan Natta, P.W.2 stated that he shifted the dead body of Sachindra Deb Barma, the father of the informant, to the Bishalgarh Sub-Divisional hospital, where the postmortem examination was conducted. 5. One Sri Sukumar Debnath as P.W.3 deposed that he accompanied two tribal boys for shifting the injured Sachindra Deb Barma by his auto rickshaw at the mid of night. He did not divulge anything important apart from what has been stated above. 6. Sri Birendra Deb Barma, who deposed as P.W.4, is a Sub-Inspector of Police, who received the Ejahar from the informant, Sanjoy Deb Barma through S.I. Sri Samir Deb Barma, who was posted at Bishramganj P.S. at the relevant point of time. Since the Ejahar was revealing a case of cognizable offence, he registered the said case as Bishramganj P.S. Case No. 50/2006, under Section 302/34 of IPC. He also stated that as the Officer-in-charge of the police station he endorsed the investigation of the case to S.I. Samir Deb Barma after receiving the FIR. 7. P.W.5, Sri Sanjoy Deb Barma, who lodged the Ejahar, is the son of the deceased. He stated that he saw Sri Kala Deb Barma and Sri Paresh Deb Barma were assaulting his father with lathi in the courtyard of the house of Nishindra Deb Barma. He had also seen that Kala Deb Barma gave blow with his log in the chest of his father and out of that assault, his father sustained injuries on his person and became senseless. Thereafter he poured water on the head of his father and arranged for a vehicle to shift his father to Bishramganj hospital, where his father was declared dead after examination by the doctor. Thereafter he poured water on the head of his father and arranged for a vehicle to shift his father to Bishramganj hospital, where his father was declared dead after examination by the doctor. On the following day, he lodged the FIR with the Bishramganj P.S. narrating the said incident and the said FIR was written by one person of Bisramganj as per his dictation. He identified his signature on the FIR, marked as Exbt.-3/2. He was also witness of the seizure of one lathi from the house of Nishindra Deb Barma and he gave his signature in the seizure list. He identified his signature in the seizure list, marked Exbt-4 and the lathi was also identified by him, which was marked as Exbt.-M.O.1. He identified both the accused persons in the dock including the appellant. In his cross-examination he stated that on the night of occurrence, he along with his mother and sister were in the house of Nishindra Deb Barma, but he did not give any specific answer whether his father took alcohol on the night of occurrence in the house of Nishindra Deb Barma or not. He also failed to recollect the name of persons, who shifted his injured father to Bishramganj hospital. 8. One Smt. Gita Deb Barma, the daughter of the deceased Sachindra Deb Barma, deposed as P.W.6. She stated that she along with her mother and brother Sanjoy woke up after hearing alarm raised by her father Sachindra Deb Barma from the nearby house of Nishindra Deb Barma. They rushed to the house of Nishindra Deb Barma and saw that Kala Deb Barma and Paresh Deb Barma were assaulting her father with lathi. She further stated that she had seen Kala Deb Barma gave blow with his log on the chest of her father. She stated that out of that assault her father fell down on the ground and became senseless. Thereafter her father was taken to Bishramganj hospital, where he was declared dead. She further stated that both Kala Deb Barma and Paresh Deb Barma were her co-villagers and she identified both of them in the court by name and face. She was also the witness of seizure list Exbt.-4 and, accordingly, she identified her signature in the seizure list, marked as Exbt.-4/1. 9. She further stated that both Kala Deb Barma and Paresh Deb Barma were her co-villagers and she identified both of them in the court by name and face. She was also the witness of seizure list Exbt.-4 and, accordingly, she identified her signature in the seizure list, marked as Exbt.-4/1. 9. Sri Budhia Deb Barma, a resident of Kariayamura, deposed before the Court as P.W.7, who stated that about two years back he was informed by Sanjoy Deb Barma and his mother that Sachindra Deb Barma became senseless on being assaulted by Kala Deb Barma and Paresh Deb Barma. On their request he rushed to the house of Sachindra Deb Barma and saw that Sachindra was lying in senseless condition in his house. Thereafter he along with Upendra Deb Barma shifted Sachindra to Bisramganj hospital by an auto rickshaw. He stated that the medical officer confirmed the death of Sachindra. He stated nothing more of importance. 10. Sri Upendra Deb Barma stated in the same line of P.W.7 while he was deposing before the Court as P.W.8. He stated that he saw Sachindra Deb Barma was lying in senseless condition in his house. Thereafter he along with Budhia Deb Barma shifted Sachindra to Bisramganj hospital by an auto rickshaw, where the doctor declared him dead after examination. He was also a witness of the inquest report. He identified his signature on the inquest report, marked as Exbt.-5. In the cross-examination, he did not make any statement which might open the prosecution case. 11. Most important witness is Sri Nishindra Deb Barma, in whose house the entire incident had allegedly taken place and deposed as P.W.9 in the Court. He stated that the deceased Sachindra Deb Barma was his co-villager and his house was situated about half k.m. away from the house of the deceased Sachindra Deb Barma. He stated that about two and half years back one day in the morning Smt. Subhalaxmi Deb Barma, who is the wife of deceased Sachindra Deb Barma, came to his house and told him that her husband Sachindra died. However, the said witness was declared hostile by the prosecution. He stated that about two and half years back one day in the morning Smt. Subhalaxmi Deb Barma, who is the wife of deceased Sachindra Deb Barma, came to his house and told him that her husband Sachindra died. However, the said witness was declared hostile by the prosecution. He stated during cross-examination by the prosecution that it is not a fact that out of the assault of the accused persons Sachindra Deb Barma became senseless and fell down on the ground and it is also not a fact that on 30.10.2006 at night Sachindra Deb Barma went to his house and took alcohol sitting in his house. 12. Smt. Sukhalaxmi Deb Barma, wife of deceased Sachindra Deb Barma, deposed as P.W.10. She stated that the house of Nishindra Deb Barma is situated within a hearing distance from her house. On that night she heard alarm raised by her husband from nearby house calling her son 'Sanjoy' 'Sanjoy'. Hearing this, she along with her son Sanjoy went to the nearby road and saw that Paresh Deb Barma and Kala Deb Barma were assaulting her husband Sachindra Deb Barma. She also stated that Paresh was assaulting her husband by giving lathi blows and Kala Deb Barma was assaulting her husband by giving blows with his hands. She along with her son tried to save her husband from such assault, but out of that assault her husband fell down on the ground and became senseless. She further stated that on their request Upendra Deb Barma and others shifted her husband to Bishramganj hospital, where the medical officer after examination declared her husband dead. She clarified that Paresh Deb Barma and Kala Deb Barma were assaulting her husband on the road in front of the house of Nishindra Deb Barma. 13. One of the co-villagers of the deceased, namely, Debendra Deb Barma, an independent witness, deposed before the Court as P.W.11, who stated that Paresh Deb Barma and Kala Deb Barma were assaulting the deceased Sachindra with lathi and also giving fist blows in the courtyard of the house of Nishindra Deb Barma. He stated that out of the said assault Sachindra fell down on the ground and became senseless. He further stated that Sachindra did not regain his sense and when he was taken to Bishramganj hospital by an auto rickshaw, the medical officer declared him dead. 14. He stated that out of the said assault Sachindra fell down on the ground and became senseless. He further stated that Sachindra did not regain his sense and when he was taken to Bishramganj hospital by an auto rickshaw, the medical officer declared him dead. 14. One brother of the deceased, namely, Sri Nishikanta Deb Barma deposed as P.W.12, who stated that he found Sachindra in the courtyard of the house of Nishindra Deb Barma. He also stated that Paresh Deb Barma and Kala Deb Barma were assaulting Sachindra by giving lathi blows and fist blows etc. and as a consequence Sachindra fell down on the ground and became senseless. Hearing alarm, wife and son of Sachindra also came in the house of Nishindra Deb Barma and saw the incident. Thereafter Sachindra was taken to Bishramganj hospital by Sri Upendra Deb Barma and others, where he was declared dead. 15. The scribe of the ejahar deposed before the Court as P.W.13. He stated that he had written the ejahar as per the dictation of Sanjoy Deb Barma and he put his signature on the ejahar. He identified his signature, which was marked as Exbt.-3/4. 16. The investigating officer, S.I. Samir Deb Barma, deposed as P.W.14. He stated that he visited the place of occurrence, prepared hand sketch map with separate index and examined the witnesses as cited in the charge sheet. However, in his cross-examination he stated that he did not examine Shri Nishikanta Deb Barma nor recorded his statement. He also confirmed the statement as marked Exbt.-6 to have been stated to him by P.W.9. In Exbt-6, Sri Nishikanta Deb Barma, stated that "as Sachindra Deb Barma came outside my hut, Paresh Deb Barma started abusing in filthy language in front of me regarding previous incident and a little later, on hearing their shouts, when ( ) son Kala Deb Barma, with a 'lathi'(staff) in hand, tried to take his father home, ( ) did not agree and ( ) slapped () in front of me. He also stated that Kala Deb Barma injured Sachindra Deb Barma in front of me with the 'lathi' (staff) that was there in his hand and kept boxing and dealing fist blows upon him while kicking him. As a result Sachindra Deb Barma became unconscious and fell down on the ground." 17. Mr. He also stated that Kala Deb Barma injured Sachindra Deb Barma in front of me with the 'lathi' (staff) that was there in his hand and kept boxing and dealing fist blows upon him while kicking him. As a result Sachindra Deb Barma became unconscious and fell down on the ground." 17. Mr. M.K. Roy, learned counsel appearing for the appellant submits that if the statement of P.W.5 and P.W.10 are believed, it would surface that both these witnesses are making contradictory statements regarding the place of occurrence. When the P.W.5, the informant, stated that the place of occurrence was in the courtyard of the house of P.W.9, Sri Nishindra Deb Barma, the P.W.10 stated that the incident occurred in front of the house of Sri Nishindra Deb Barma and on the roadside. This vital contradiction strikes at the credence of those witnesses. The other witnesses are tutored, as P.W.6 is the daughter of deceased Sachindra and other the co-villagers' presence cannot but doubted. Learned counsel for the appellant further submitted that the injury that had been received by the deceased can be had from a sudden fall on a hard substance. It has been proved that the deceased was in a state of drunkenness and from the postmortem report also that would be confirmed and, as such, the fall theory cannot be brushed aside on the face of it. Learned counsel for the appellant further submitted that P.W.12 though was not examined by the investigating officer but he deposed before the Court and, as such, his deposition cannot be believed by this Court as he is a close relative of P.W.10, the widow of the deceased. 18. On the other hand, Mr. R.C. Debnath, learned special P.P. submits that sufficient corroboration is found in the statement of P.W.5, P.W.6, P.W.10, P.W.11 and P.W.12 and in absence of any defence case on the evidence, the prosecution case cannot be doubted. Learned special P.P. further added that certain discrepancies as surfaced from the statements of the witnesses cannot be given emphasis out of proportion and that might cause the failure of justice. 19. On re-appreciation of the evidence led by the prosecution as well as on consideration of the rival submissions, this Court finds that the role of the appellant has to be gathered from the evidence. 19. On re-appreciation of the evidence led by the prosecution as well as on consideration of the rival submissions, this Court finds that the role of the appellant has to be gathered from the evidence. It has emerged from the ejahar that there was a quarrel between Sachindra Deb Barma and the appellant and Kala Deb Barma and both had a heated discussion. Thereafter the appellant assaulted the deceased with a lathi and Kala Deb Barma assaulted the deceased with a wooden shaft. In the words of P.W.4 "I saw Kala Deb Barma gave blow with his log in the chest of my father". Similarly, P.W.6 stated that "I saw Kala Deb Barma gave blow with his log on the chest of his father". P.W.10, the widow of the deceased gave different version regarding the assault on the deceased, who stated that Paresh Deb Barma had given blows by lathi. P.W.11 stated that he saw Kala Deb Barma gave lathi blows and Paresh gave blows by his hands on the person of Sachindra. Both P.W.10 and P.W.11 did not corroborate the version of P.W.5 and P.W.6. Similarly, P.W.12 also did not corroborate the statement of P.W.5 and 6 regarding giving blows by a shaft. From the statement of medical officer, who conducted the postmortem examination, it appears that in case of direct hit on the abdomen by any blunt object, one person can sustain such type of rapture injuries. Though there are several witnesses, but no such definite evidence is there to ascertain who gave the blow on the abdomen of the deceased. Out of the quarrel it might happened that lathi blows were given on the deceased by the appellant and another co-accused, namely, Kala Deb Barma. But whether that would drive home the charge under Section 304 Part-I of IPC or not. It has to be weighed by this Court. 20. If there is no intention to cause death coupled with the lack of knowledge that the death would inevitably be caused on account of injury would make the offence not fall under Section 304 Part-I, but under Section 304 Part-II of IPC. It has to be weighed by this Court. 20. If there is no intention to cause death coupled with the lack of knowledge that the death would inevitably be caused on account of injury would make the offence not fall under Section 304 Part-I, but under Section 304 Part-II of IPC. Learned Sessions Judge convicted the appellant under Section 304 of IPC though there is no evidence of "intention of causing death or such bodily injury as is likely to cause death." In this regard the decision of the Apex Court rendered in State of U.P. V. Indrajeet @ Sukhatha, reported in (2000) 7 SCC 249 has been relied by the learned counsel for the appellant. The other contention of the learned counsel appearing for the appellant is that the place of occurrence has been shifted hither and thither and several different places cannot be accepted as the place of occurrence but the courtyard and the front of the house and the roadside hardly make any difference in the eye of rustic witnesses. Out of the quarrel, lathi blows were given, as it appears, indiscriminately. There appears no intention to kill the deceased and as such the conviction of the appellant under Section 304 Part-I has to be interfered with and set aside. But the offence of the appellant under Section 304 Part-II from evidence led by the prosecution is well established. 21. In view of this, the appellant is convicted under Section 304 Part-II of IPC in consonance with Section 222, Cr. P.C. and he is sentenced to suffer to R.I. for three years with a fine of Rs. 5,000/- in default of payment of fine, the appellant has to suffer further S.I. for two months. The period of detention as already undergone by the appellant shall be set off from the sentence. With the above observations the appeal is partly allowed and is accordingly disposed of. Lower Court records be returned forthwith.