Judgment Kanchan Chakraborty, J. This appeal is directed against the judgment and order dated 30.7.2010 passed by the Learned Additional Sessions Judge, Fast Track Court No.2, Ranaghat, Nadia in Sessions Case No.104 (12) of 2004 thereby convicting the appellant Jadav Sarkar for committing an offence punishable under Section 304 Part II of the I.P.C. and sentencing him to suffer R.I. for five years with a fine of Rs.2,000/-. 2. One Dhiren Halder lodged one F.I.R. with Ranaghat Police Station on 3.6.2000 alleging therein that on 3.6.2000 at 1.30 hours when his sons Mrityunjoy and Arjun were sleeping in the room keeping the window open, Mrityunjoy was stabbed with a sharp cutting weapon like sphere on his back side. Mrityunjoy shouted owing to pain and Arjun woke up then and there and found with the help of torch that the appellant Jadav Sarkar was fleeing away. Extensive search was made to trace out Jadav Sarkar but he was not found in his house. Mrityunjoy was taken to Anulia Hospital wherefrom he was shifted to Shaktinagar Hospital. On the basis of the said F.I.R., Ranghat Police Station case No.120 of 2000 dated 3.6.2000 was registered under Section 326 of the I.P.C. against Jadav Sarkar. Mrityunjoy died thereafter in N.R.S. Hospital, Kolkata. The case was investigated into and finally charge sheet was filed against the appellant under Section 326/304 of the I.P.C. The appellant was arrayed to face the charge under Sections 304 of the I.P.C. to which the accused/appellant pleaded not guilty and, accordingly, the trial commenced. 3. In course of trial eight witnesses were examined on behalf of the prosecution. The formal F.I.R., the F.I.R., the Post Mortem report, seizure list, medical report, rough sketch map of the P.O. etc. were admitted into evidence and marked exhibits on behalf of the prosecution. No witness was examined on behalf of the defence. 4. The Learned Trial Court, upon consideration of the evidence on record, found that the prosecution brought home the charge under Section 304 Part II of the I.P.C. and accordingly, he was convicted and sentenced to suffer R.I. for five years and to pay a fine of Rs.2,000/-. No witness was examined on behalf of the defence. 4. The Learned Trial Court, upon consideration of the evidence on record, found that the prosecution brought home the charge under Section 304 Part II of the I.P.C. and accordingly, he was convicted and sentenced to suffer R.I. for five years and to pay a fine of Rs.2,000/-. The impugned judgment has been challenged in this appeal on the following grounds; a) that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective; b) that the learned Trial Court failed to take note of the fact that the torch with which the P.W.4 had seen the appellant fleeing away, was not seized by police; c) that the learned Trial Court failed to appreciate that the offending weapon was not seized by police; d) that the learned Trial Court failed to put any importance on the discrepancies in material factual aspect and also failed to consider the condition of colon of the deceased as stated by medical witness; e) that the judgment being otherwise bad in law, is liable to be set aside. 5. Mr. Majumder, learned Counsel appearing for the appellant contended that Mrityunjoy, the deceased made no dying declaration either in writing or orally although he was alive for two days after the incident. The evidence adduced on behalf of the prosecution clearly indicates that the incident had taken place at a time when it was dark. The P.W.4, the brother of the deceased who had allegedly seen the appellant fleeing away with the help of torch should not have been believed by the Court on two counts – firstly, the torch was not seized and secondly, the sphere (Ballam) was not seized. Since it was a dark night and the offending weapon and the torch were not seized by the I.O., it had created doubt on the prosecution case. It is really doubtful whether the P.W.4 had actually identified the miscreant properly under the prevailing circumstance. This apart, he contended that there is discrepancy as to number of injuries. In view of the P.W.2, the Doctor who conducted the Post Mortem on the dead body of Mrityunjoy, there were two injuries. But, according to the P.W.4, Mrityunjoy was hit once only on his buttock. This discrepancy had also caste shadow on the prosecution case. 6. Mr. This apart, he contended that there is discrepancy as to number of injuries. In view of the P.W.2, the Doctor who conducted the Post Mortem on the dead body of Mrityunjoy, there were two injuries. But, according to the P.W.4, Mrityunjoy was hit once only on his buttock. This discrepancy had also caste shadow on the prosecution case. 6. Mr. Panda, learned Counsel appearing for the State of West Bengal contended that non-seizure of torch and sphere does not necessarily imply that what the witnesses stated are false. The appellant was a known person to all the family members of the deceased. He was a local man and friend of the deceased. Therefore, it was easy for the P.W.4 to identify him with the light of torch even in dark. Mr. Panda contended that the evidence of all the prosecution witnesses was consisting and there was no reason, whatsoever, to discard their testimonies. It has been submitted by Mr. Panda that Mrityunjoy stated the P.W.5 that he was assaulted by Jadav Sarkar, the appellant. Mr. Panda also contended that none of the witnesses had actually stated that Jadav had given one blow only with the sphere. He contended that the judgment appears to be based on clinching and reliable evidence. Accordingly, the same is not required to be interfered with in this appeal. 7. At the bar, the following decisions have been referred to; 1) Ram Narain Vs. State of Punjab, reported in A.I.R. 1975 SC 1727; 2) Jassa Singh & Ors. Vs. State of Haryana, reported in 2002 SCC (Cri) 363; 3) Durbal Vs. State of Uttar Pradesh, reported in (2011) 1 SCC (Cri) 877. 8. The lodger of the F.I.R., as it appears, was not an ocular witness. He is father of Mrityunjoy, the deceased and Arjun. Dhiren Haler, the lodger of the F.I.R. was examined as P.W.3. He stated categorically that both of his sons Mrityunjoy and Arjun were sleeping on a cot in their room by the side of the window. The appellant Jadav Sarkar at about 1.30 hours caused hurt to Mrityunjoy with the help of a sharp cutting weapon on his buttock through the said window from outside. Mrityunjoy shouted owing to pain and Arjun woke up then and there with a help of torch light found Jadav, the appellant outside the window. The appellant Jadav Sarkar at about 1.30 hours caused hurt to Mrityunjoy with the help of a sharp cutting weapon on his buttock through the said window from outside. Mrityunjoy shouted owing to pain and Arjun woke up then and there with a help of torch light found Jadav, the appellant outside the window. From his cross-examination, it appears that it was a dark night and he found his son Mrityunjoy was suffering from pain due to assault. Some of the local people also appeared in the scene hearing hue and cry who also accompanied Mrityunjoy to hospital. He denied that out of suspicion, Jadav was implicated in the case. 9. In this case, the star witness is P.W.4, i.e., Arjun Halder, the brother, who was sleeping with the deceased on the same cot at the relevant period of time. He stated categorically that at about 1.30 hours, he heard that his brother Mrityunjoy cried out all on a sudden. He woke up and found Mrityunjoy sitting on the bed pressing his buttock. Immediately, he took out the torch kept near the pillow and with the help of the light of the torch, he found Jadav on the road who turned his face and fled away then and there. He stated also that Jadav had a sharp weapon in his hand at that time. P.W.4 has stated that Yadav was a friend of Mrityunjoy and he knew him since his childhood. He denied the suggestion put in his cross-examination that he did not find JYadav with the help of the light of the torch. P.W.4 has not been extensively cross-examined. He was not put any question as to the facts narrated by him in his examination in chief even in form of suggestion. In fact, his statement remained unchallenged. P.W.5 is the mother of the deceased and P.W.4. She stated that her two sons Mrityunjoy and Arjun were sleeping on a cot as usual at that particular night. At about 1.30 hours on hearing cries of her two sons, she woke up and went there. Arjun opened the door and told that his elder brother was assaulted on his buttock. Mrityunjoy (deceased) told her that Jadav Sarkar caused hurt to him. Arjun also told that he found Jadav with the light of a torch. Mrityunjoy was assaulted through the window of the room. Arjun opened the door and told that his elder brother was assaulted on his buttock. Mrityunjoy (deceased) told her that Jadav Sarkar caused hurt to him. Arjun also told that he found Jadav with the light of a torch. Mrityunjoy was assaulted through the window of the room. In her cross-examination, she stated that Jadav killed her son out of enmity that had arisen one and half year before the incident. She stated further in her cross-examination that she heard about an incident about the quarrel in between Mrityunjoy and Jadav. To be stated precisely, the defence has failed to fetch out any statement from the mouth of P.W.5 in its favour. The statement of the P.W.5, if it is read as a whole, supported the statement of the P.W.4 as well as the P.W.3. 10. The P.W.6 was the local man who appeared in the scene hearing hue and cry and came to know that Mrityunjoy sustained injuries and was taken to hospital. He was declared hostile but in cross-examination he stated that he heard the shouting “Dadake mere fello”. This particular statement of the P.W.6 supports the prosecution case. He was not cross-examined by the defence to controvert that statement. This clearly indicates that the P.W.6 although arrived belatedly in the scene, heard the shouting of Arjun and he could remember each and every word of it. This particular statement in the cross-examination of the hostile witness P.W.6 appears to be very important and no doubt, supported the prosecution case. 11. In the instant case, the evidence of P.W.2 is also very important. P.W.2 is the Doctor who conducted post mortem on the dead body of Mrityunjoy. He found the following injuries; “1) Stab injury-1” X ½” placed obliquely over right posterior lateral aspect on chest. 3” X 9” over right heel and 7” from right to mid line. On dissection dressing of the wound, it was found to pierce skin, subcutaneous tissue fascia mussles and ends over rib. Spindle shaped, directed to right to left posterior to anterior below upwards. The truck wound is convergent. 2) One stab wound – ¾” X 0.4”, the spindle shaped placed obliquely over left buttock 1” in front of anus and 1/1” left to midline. On disection and tracing of the wound, it was found to terminate in mussle depth of 1 ½” depth. The truck wound is convergent. 2) One stab wound – ¾” X 0.4”, the spindle shaped placed obliquely over left buttock 1” in front of anus and 1/1” left to midline. On disection and tracing of the wound, it was found to terminate in mussle depth of 1 ½” depth. It is directed left to right, posterior to anterior more or less horizental, it is convergent. 3) Rupture of ulcerative colon over descending part with fluid and clotted blood inside the peritoneal cavity. All the injuries showed evidence of vital reaction. Extra vessted clotted (E.V.C.) blood dark red in colour.” 12. In his opinion, the death was due to the effect of injuries with deceased’s condition of colon. The death was ante mortem in nature. He also stated categorically that the injuries detected by him were caused by sharp weapon like Ballam. In his cross-examination, he stated that two blows were given by the miscreant. 13. It is true that Mrityunjoy made no statement regarding assault which was caused of his death during the period he was alive. But he stated his mother P.W.5 orally that he was hit by Jadav, the appellant. The fact that Jadav caused injuries on the back side of the body of Mrityunjoy has been categorically stated by P.W.4 who was an eye witness of the incident. He not only found Jadav, with the help of light of the torch, fleeing away but also having a sharp cutting weapon in his hand. Jadav was not found in his house immediately after the incident. The fact that Jadav was not found in his house after the incident mentioned in the F.I.R. was not challenged in course of cross-examination of the witnesses’ including the lodger of the F.I.R. Jadav was a known person to all the family members of Mrityunjoy, Arjun, P.W.4 and they knew Jadav since his childhood. Naturally, Arjun could identify Jadav with the help of the torch light. There is no absurdity or unnaturality in this matter. It is stated categorically by the P.W.2 that the injuries sustained by the deceased were caused by weapon like sphere. It can well be understood that if one wants to cause injury upon body of a person from outside the room through open window, he should use weapon like sphere which would reach to the body. It is stated categorically by the P.W.2 that the injuries sustained by the deceased were caused by weapon like sphere. It can well be understood that if one wants to cause injury upon body of a person from outside the room through open window, he should use weapon like sphere which would reach to the body. Jadav being a local man was well acquainted with the fact that Mrityunjoy and Arjun used to sleep on a bed which was near the window. Naturally, he used a sphere to inflict injury on the body of Mrityunjoy. Arjun identified him without any suspicion. 14. Although, it is contended by Mr. Majumder that two injuries were detected, the P.W.4 stated about one injury only. I do not accept this proposition of Mr. Majumder, the P.W.4, in fact, has not stated that his brother received one injury only. He said that his brother was sitting on the bed pressing his buttock. Nowhere he stated that his brother was hit once only. There was no contradiction in between the statement of P.W.2 and P.W.4 as far as injuries are concerned. 15. The P.W.5 stated about the enmity in between Mrityunjoy and Jadav but made it clear by stating that she heard about it. She had no personal knowledge about it. She did not state who told her about that enmity. Rather, the P.W.4 has stated that Jadav was a friend of his brother Mrityunjoy. 16. Taking everything into consideration, it appears that the learned Court appreciated the evidence properly in its true perspective and scrutinised the documentary evidence with great attention. 17. In the column 10 of the medical report [Ext.5 (a)) set out the short history of the case. It says that while patient was sleeping in his bed room keeping open the window room, an unknown person assaulted him with sharp weapon over his buttock. Even if it is accepted that the said statement was made by Mrityunjoy, there is no reason for the defence to get benefit out of it. It is an admitted position that both Arjun and Mrityunjoy was sleeping when Mrityunjoy was hit by a sharp cutting weapon through the window. Naturally, he had no idea who hit him. It is Arjun who saw Jadav outside the window and fleeing away from the place with sharp cutting weapon. It is an admitted position that both Arjun and Mrityunjoy was sleeping when Mrityunjoy was hit by a sharp cutting weapon through the window. Naturally, he had no idea who hit him. It is Arjun who saw Jadav outside the window and fleeing away from the place with sharp cutting weapon. The patient was brought to the hospital by Khokan Halder who was not examined in the case. The short history of assault as noted in the column 10 of Ext.5 (a) where was given either by Khokan or Mrityunjoy – was a question before the Court. The learned Court categorically analysed the position and stated that in all probabilities Khokn had given the history and he had no knowledge who had actually inflicted injury on the buttock of Mrityunjoy. The learned Trial Court also discussed about the reliability of the evidence of P.W.4. On critical analysis, the learned Court came to a conclusion that there was no reason to disbelieve the statement of the P.W.4 which got support from P.W.5, P.W.3 as well as P.W.2. 18. The contention of Mr. Majumder, learned Counsel for the appellant that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective does not appears to be correct. On the contrary, it appears to me that the learned Court had gone deep into the matter, analysed each and every situation categorically and came to a definite finding. There was no suspicion as to the identity of Jadav Sarkar as the person who inflicted the injury. It is true that the torch and the sphere were not seized by the I.O. It can be noted down that Jadav was not found in his house immediately after the incident. In all probabilities, he dropped the sphere in a hideous place. He was not taken into police custody by the I.O. for the purpose of making any statement leading to discovery. Therefore, non seizure of sphere, by no way, affected the credibility of the testimonies of P.W.4, P..3, P.W.5 and P.W.2. The P.W.4 stated categorically that he found Jadav on the road who turned his face and fled away. There was no cross-examination on behalf of the defence controverting that statement of the P.W.4. So, it being unchallenged testimony of P.W.4, the learned Trial Court had rightly believed the same. 19. The P.W.4 stated categorically that he found Jadav on the road who turned his face and fled away. There was no cross-examination on behalf of the defence controverting that statement of the P.W.4. So, it being unchallenged testimony of P.W.4, the learned Trial Court had rightly believed the same. 19. As far as non-seizure of torch is concerned, it can well be said that it was the fault on the part of the Investigating Officer and for that fault, the prosecution case cannot be thrown away. Seizure of the torch by the I.O. and production of the same in the Court would have strengthened the prosecution case. But absence of the same has not weakened the prosecution case also. The evidence of the witnesses appears to be consisting, corroborating, reliable and cogent. There was no wrong on the part of the learned Trial Court to come to a conclusion that Jadav has inflicted injury on the buttock of Mrityunjoy. 20. In Ram Narin Vs. State of Punjab (Supra), it was held by the Hon’ble Court that in a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary where the prosecution has a definite or positive case, it is doubtful where the injuries which are attributed to the appellant were caused by a gun or by a rifle. 21. In the instant case, the P.W., the Doctor categorically stated that the death was due to effect of injuries with the deceaseds’ condition of colon. He stated also specifically that the injuries detected by him were caused by sharp weapon like ballam and two blows were given by the miscreant. Therefore, in the instant case, the prosecution has discharged his duties by proving the injuries caused by ballam/sphere. The expert evidence was taken to that effect which supported the prosecution case. 22. In Jassa Singh & Ors. Vs. State of Haryana (Supra), there was conflict between the medical evidence and the testimony of witnesses as well as appearance of the appellant at the place of occurrence was also found doubtful. The expert evidence was taken to that effect which supported the prosecution case. 22. In Jassa Singh & Ors. Vs. State of Haryana (Supra), there was conflict between the medical evidence and the testimony of witnesses as well as appearance of the appellant at the place of occurrence was also found doubtful. The factual aspect of that case before the Hon’ble Apex Court and that of this case are quite different. In the instant case, testimonies of the witnesses neither conflicting with medical evidence nor the appearance of the appellant in the scene at the relevant time was doubtful. Therefore, the decision of the Hon’ble Apex Court will not help the defence in any manner in this case. 23. In Durbal Vs. State of U.P. (Supra), the Hon’ble Court mainly discussed over the principles relating to “benefit of doubt”. There was no enmity whatsoever between the deceased and the accused. It was also doubtful whether the witnesses had actually torch lights in their hands, as stated by them, in absence of recovery of their recovery details in seizure memo and their non-production before Court. The Hon’ble Apex Court came to a conclusion that all those factors had given rise to doubt and accordingly, the benefit of doubt was given to the accused. 24. True it is, in the instant case, the torch light with the help of which Arjun had seen the appellant by the side of the window with a sphere was not seized. But the fact that he was having a torch light which he always kept beside his pillow when he goes to sleep has not been challenged. The evidence of Arjun to that effect has been corroborated by the other witnesses. There cannot be any rule of law – “no seizure alamat – no conviction”. In a criminal case, parties win or defeat on merit not on technicalities. When there is sufficient evidence to the effect that Arjun had a torch light and with the help of which he found the appellant by the side of the window with a sphere that fact cannot be thrown away simply because the torch light was not seized and produced in Court. This is the laches on the part of the Investigating Officer and for that, prosecution case cannot be said to have affected much. 25. This is the laches on the part of the Investigating Officer and for that, prosecution case cannot be said to have affected much. 25. The appellant Jadav was convicted for committing offence under Section 304 Part II of the I.P.C. It is admitted position that Mrityunjoy sustained injury on his buttock and over the right posterior lateral aspect on the chest, i.e., all the injuries were on the back side of the body. It is not clear whether the appellant Jadav had knowledge that the injury he inflicted would likely to cause death or caused such bodily injury as was likely to cause death. The prosecution was to establish that the accused had the intention of causing death or intention of causing such bodily injury as was likely to cause death or with the knowledge that it was likely by such act to cause death. That intention on the part of the appellant/accused can be gathered from his action and the facts situation. The appellant/accused had every scope to pierce the sharp edged portion of the sphere with full force on the more vital organ of the body of Mrityunjoy had he any intention to cause his death or with the intention of causing such bodily injury as was likely to cause death. He hit on the back side of the chest which reached up to 1” X 1/2” only. The injury in the buttock was ¾” X 0.4”. This nature of injury clearly indicates that force was not applied fully by the appellant while he caused the injuries. He simply poked with the edged part of the sphere and caused the injury. It is unfortunate that Mrityunjoy died but it can hardly be said that the offence committed by the appellant is amounting to culpable homicide as defined under Section 299 of the I.P.C. This is rather a clear case under Section 324 of the I.P.C., which says about the voluntary causing hurt by dangerous weapons or means. The incident had not taken place suddenly or on a spar of moment. It was done in a planned manner but not with an intention to cause death. The death was caused not only due to the effect of the injuries but the injuries associated with the deceaseds’ condition of colon. The learned Court was oblivious of the opinion of the P.W.2 in this regard. 26. It was done in a planned manner but not with an intention to cause death. The death was caused not only due to the effect of the injuries but the injuries associated with the deceaseds’ condition of colon. The learned Court was oblivious of the opinion of the P.W.2 in this regard. 26. Taking everything into consideration, I find that the alleged incident was caused by the appellant and he thereby committed an offence which attracts voluntary causing hurt by dangerous weapons or means punishable under Section 324 of the I.P.C. 27. In view of the discussions above, the conviction of the appellant is upheld but converted to Section 324 of the I.P.C. in place of section 304 Part II of the I.P.C. 28. The appellant is in custody since 30.7.2010 in connection with this case. Considering that fact, his sentence is reduced to the period that he has already under gone. However, he is sentenced to pay a fine of Rs.10,000/-in default, he will suffer imprisonment for one year. In case the fine amount is paid, it should be given to the P.W.5, the mother of the deceased, Mrityunjoy. 29. With the observations above, the appeal is disposed of. 30. There will be no order as to costs. 31. Let a copy of this judgment along with the L.C.R. be sent down to the learned Trial Court.