Judgment : Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 30th July, 1988 passed by learned Additional Session Judge, 2nd Court at Howrah in Session Trial case no. XVI (I)/87 convicting the appellant for commission of offence punishable under Section 304 Part II of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years. Prosecution case as alleged against the appellant is that the victim Aloke Kr. Bose was living with his father and family members at ‘L’ Road, P.S. Liluah. On 17th September, 1985 which was the day of Biswakarma Puja at about 9.30 a.m. the victim Aloke and the appellant were cutting jokes in front of the grocery shop of Ranjit Dalui @ Ghentu (P.W.4) in the said locality. The matter went out of hand and there was altercation between them whereupon the appellant inflicted fists and blows and threw brickbats at the victim causing injuries on him. The victim returned to his house and was examined by a local Homeopath, Dr. Kartick Ch. Paul, P.W. 6. The latter advised the victim to be removed to hospital. Thereafter the victim was taken to Medical College and Hospital in a taxi by P.W. 1 and other persons. At the hospital the victim was declared dead. Thereafter P.W. 1 went to Bowbazar police station and from there he was referred to Liluah Police Station. P.W. 1 narrated the incident to the officer in charge of the said police station who wrote down the contents and Liluah police station case no. 6 dated 17th September, 1985 was registered under Section 304 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed against the appellant under Section 304 of the Indian Penal Code. The case being a sessions triable one was committed to the Court of sessions, Howrah and transferred to the Court of Additional Sessions Judge for trial and disposal. Charge was framed under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined as many as 12 witnesses and exhibited number of documents. The defence of the appellant was one of innocence and false implication. Charge was framed under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined as many as 12 witnesses and exhibited number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Court by judgment and order dated 30th July, 1988 convicted the appellant for commission of offence punishable under Section 304 Part II of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for five years. Hence, the present appeal. Mr. Mullick, learned counsel appearing for the appellant submitted that the first information report is an ante dated document and was subsequently manufactured. He further submitted that the evidence of P.W. 2 and P.W. 3 could not be relied upon as their evidence suffered from various inconsistencies and/or embellishments. P.W. 4 did not support the prosecution case. He further submitted that the ocular evidence was not consistent with the injuries found on the body of the victim. The purported dying declaration is an after thought and an embellishment which ought not to be relied upon. He prayed for the conviction being set aside. He also argued that bearing in mind the facts and circumstances in which the offence was committed, the sentence is too severe. Mr. Banerjee, learned additional Public Prosecutor submitted that the victim was assaulted by the appellant. P.W.2 and P.W. 3 are the eyewitnesses who remained unshaken in cross-examination. The victim himself made a dying declaration implicating the appellant. He further submitted there was no inconsistency in the ocular version and medical evidence. He accordingly prayed for dismissal of the appeal. P.W. 1 (Fatick Basu) is the defacto complainant and the father of the victim. He stated that on 17th September, 1985 at about 9.30 a.m. the victim had gone to purchase puffed rice (muri) from a nearby shop. After returning home, he started vomiting. He complained of pain in his belly. Dr. Paul was brought. The victim told the doctor in presence of P.W.1 that the appellant inflicted fists and blows on his belly and also throw brick bats at him. P.W. 6 advised the victim to be taken to hospital. Victim was taken to Medical College and Hospital by P.W. 1 and others. He was declared dead at the hospital. Dr. Paul was brought. The victim told the doctor in presence of P.W.1 that the appellant inflicted fists and blows on his belly and also throw brick bats at him. P.W. 6 advised the victim to be taken to hospital. Victim was taken to Medical College and Hospital by P.W. 1 and others. He was declared dead at the hospital. P.W. 1 came to know of the incident from Ranjit Dalui, P.W. 4 and Ranjit Rana, P.W. 2 and Ashim Koley, P.W. 3. He came to know that the victim had gone to the grocery shop of P.W. 4 and demanded khaini from the appellant. The appellant and the victim were cutting jokes and in course of such banter the appellant became angry and started assaulting the victim with fists and blows and thereafter when he started fleeing away, the appellant threw brick bats at the victim. Para people intervened whereupon the appellant stated that if the victim again came there he would kill him. From Medical College and Hospital, P.W. 1 went to Bowbazar police station. There he was referred to Liluah police station. He narrated the incident at about 12/12.30 p.m. to Daroga babu at Liluah police station who wrote the contents and read over and explained the same to him. He signed on the document. He has proved the first information report which was marked as Exhibit 1. After post mortem dead body of the victim was handed over to him. In cross-examination he stated that he had heard incident from others. P.W. 2 (Ranjit Rana) is the eyewitness in the instant case. He stated that on 17th September, 1985 the appellant and the victim were cutting jokes in front of the grocery shop of P.W. 4 and at that time Ashim Koley P.W. 3 and Ranjit Dolui (P.W. 4) were present. It was about 9.30 a.m. in the morning. Being enraged by such jokes, the appellant inflicted blows by fists on the victim. The victim started fleeing away. The appellant threw brick bats at him. Brickbats struck him in the abdomen. Then the appellant went away. Thereafter the victim came with a tiffin carrier and stated that he was suffering pain in his belly. P.W. 2 took him to his home. Thereafter the victim was taken to hospital where he was declared dead. The police came to the place of occurrence. Brickbats struck him in the abdomen. Then the appellant went away. Thereafter the victim came with a tiffin carrier and stated that he was suffering pain in his belly. P.W. 2 took him to his home. Thereafter the victim was taken to hospital where he was declared dead. The police came to the place of occurrence. After some time P.W. 2 showed the brickbats to the police. The police seized the brickbats. The police prepared the seizure list. He signed the same. He proved his signature on the seizure list. In cross examination, he stated that the police came to the spot in front of Ghentu’s shop at 10.30 a.m. in the day. P.W. 3 (Ashim Koley) is another eyewitness. He stated that on the Viswakarma puja day in 1985 around 9 a.m. the victim wanted khaini from the appellant and the appellant chased him and there was pushing between the appellant and the victim. Suddenly the appellant threw brick at the victim. The victim came to the nearby shop and told that the appellant had thrown brick upon him. Thereafter the victim went to his house. P.W. 3 told the incident to the victim’s father. Thereafter the police came. The police seized the brick. He has proved his signature on the seizure list. In cross-examination, he stated that the appellant threw brick upon the victim when he was 3-4 cubits away from appellant. He stated that he met the police at 3-30/4 p.m. in the after noon. P.W. 4 (Ranjit Dalui @ Ghentu) was declared hostile in the instant case. He however, stated that there was altercation between the appellant and the victim over khaini. They started pushing each other. He went inside the shop room. After some time he saw the victim went to his house. Later he came to know that the victim was removed in a taxi to Medical College and Hospital where he was declared dead. In cross-examination, he stated that T.O.P. can be seen from his shop room. The incident took place at a distance of 30ft.to the south of his shop. P.W. 5 (Papia Basu) is the sister of the victim. She stated that the victim returned home on 17th September, 1985 around 9.30 a.m. and complained of pain in his belly. Dr. Kartick Paul (P.W.6) was called who stated that there was injury in his belly. The incident took place at a distance of 30ft.to the south of his shop. P.W. 5 (Papia Basu) is the sister of the victim. She stated that the victim returned home on 17th September, 1985 around 9.30 a.m. and complained of pain in his belly. Dr. Kartick Paul (P.W.6) was called who stated that there was injury in his belly. On enquiry the victim stated to the doctor that the appellant had inflicted blows by fists on his belly and had hurled brickbats at him. He advised P.W. 1 to remove him to the hospital. P.W. 6 (Dr. Kartick Paul) is the Homeopath who treated the victim at his residence. During examination the victim stated that the appellant assaulted him with brickbats. P.W. 6 advised P.W. 1 to remove the victim to hospital. P.W. 7 (Arun Chatterjee) accompanied the victim to hospital in a taxi. Enroute the victim narrated the incident. P.W. 8 (Sisir Kr. Bhattacharjee) took the dead body of the victim from the Medical College and Hospital. P.W. 9 (Ashok Koley) stated that there was altercation between the appellant and the victim and the appellant assaulted the victim with fists and blows and thereafter threw brick bats at him. He accompanied the victim to hospital. On the way, the victim narrated to the incident to him. P.W. 10 (Sisir @ Bacchu Roy) stated that the victim told him that the appellant had inflicted fists and blows upon the victim and assaulted him with a brick. P.W. 11 (Dr. R. Karmakar) is the doctor who examined the victim. He found following injuries on the victim. “1. One abrasion 4” X3” placed on the left lateral wall of chest wall on the lower part 7 ½” left from the midline and 7” above, the highest point of left iliac crest with underline bruise 3” X2” area diffusedly. 2) One abrasion 2 ¼ “ X ½” placed obliquely on the rentral aspect of right elbow bent. On dissection I found the following injuries. 1) One lacerated wound 2” X 1” X ½ in the spleen on its dorsolateral aspect. 2) Extravagation of blood 1” X1/2” area diffused over the upper part of ventral aspect of left kidney on its capsules. 3) Fair amount of fluid and clotted blood in the peritonial cavity. All the abrasions covered with fresh blood clots. The bruise is dark red in colour. 2) Extravagation of blood 1” X1/2” area diffused over the upper part of ventral aspect of left kidney on its capsules. 3) Fair amount of fluid and clotted blood in the peritonial cavity. All the abrasions covered with fresh blood clots. The bruise is dark red in colour. All the injuries show evidence of vital reactions. No other injuries except those are noted above could have been detected even after careful dissection and examination with the help of magnifying handlens.” He stated that death was due to effects of shock and haemorrhage following the injuries which are antemortem in nature. Injuries on the spleen and kidney were caused by blows or throwing hard blunt substance like brickbats. In cross-examination, he stated that in the event the victim suffered such injury due to accidental fall, it would be associated with abrasions, bruises, even lacerations on different body parts. P.W. 12 (Pronob Kumar Mukherjee) is the investigating officer of the case. He filled up the formal First Information Report marked as Exhibit 1/1. He examined the witnesses. He prepared the sketch map of the place of occurrence. He seized the brickbats from the place of occurrence and filed charge sheet. I have examined the evidence on record. P.W.s 2, 3 and 4 claimed to be the eyewitnesses of the instant case. P.W. 4 was however, declared hostile as he did not support the prosecution case. Consistent version of P.W.s 2 and 3 was to the effect in course of casual banter the appellant suddenly became enraged and hit the victim with fists and blows. Thereafter when the victim was trying to run away the appellant threw brick bats at the victim. Mr. Mullick has criticized the evidence of the witnesses on the ground that there is inconsistency as to whether brick bats were thrown from the back or from the front. He further submitted that the injuries as found by the post mortem doctor, P.W. 11 did not corroborate the version of the aforesaid witnesses. I find that the evidence of P.W.s 2 and 3 is consistent. They have unequivocally stated the manner and circumstances in which the incident occurred. Both of them had unequivocally stated that the victim was assaulted by fists and blows and thereafter brick bats were thrown at him. I find that the evidence of P.W.s 2 and 3 is consistent. They have unequivocally stated the manner and circumstances in which the incident occurred. Both of them had unequivocally stated that the victim was assaulted by fists and blows and thereafter brick bats were thrown at him. The injuries as transpiring from the post mortem report show that the victim suffered rupture of spleen as well as kidney. P. M. Doctor agreed with the suggestion that kidneys are apt to be injured when the body violently pressed forward at the lumber region. It is, therefore, likely that the victim was first assaulted by fists and blows in the belly resulting in rupture if the spleen and thereafter brickbat was thrown at him which struck in the lumber region resulting in rupture of kidney. Accordingly, I am unable to accept the submission of the learned counsel for the appellant that the ocular version as narrated by the witnesses was contrary to medical evidence. It has been strenuously argued that P.W. 2 ought not to be believed as he stated that the police effected search and seizure at around 10.30/11 a.m. when first information report in fact was registered at around 2.30 p.m. It is true that even P.W. 3 stated that the police had come to the place of occurrence at 3.30/4 p.m. It is possible that P.W. 2 made a mistake as to the time when police came for the purpose of investigation. Mere incorrect quoting of time as to when the police came to the place of occurrence and effected search and seizure would not discredit or improbabilise the presence of P.W. 2 at the place of occurrence more particularly when his presence is acknowledged by other witnesses namely P.W. 3 and P.W. 4 and he has also been named in the first information report as eye witness. Mr. Mullick submitted that the first information report is a manufactured document. He drew my attention to the cross-examination where P.W. 1 stated that after investigation he followed the police to the police station whereupon the police wrote the contents and he signed on the contents. Appreciation of evidence of P.W. 1 in its totality would show that his son had gone out to purchase muri. When he came back to the house his son complained of stomach pain. Dr. Appreciation of evidence of P.W. 1 in its totality would show that his son had gone out to purchase muri. When he came back to the house his son complained of stomach pain. Dr. Paul (P.W. 6) was called and the victim narrated the incident to Doctor. He was taken to the hospital on the advice of P.W. 6. He was declared dead at hospital. P.W. 1 thereafter went to Bowbazar police station and was referred to Liluah Police Station where he narrated the incident to the officer in charge of the said police station. The officer in charge wrote down the contents and P.W. 1 signed the same. This was done at 12 p.m. Thereafter the officer in charge went to the place of occurrence and conducted investigation. In cross-examination, the witness admitted that he again returned to the police station and signed certain documents. Such evidence in cross-examination however, does not wash away the consistent version of P.W. 1 that he had visited the police station earlier and had actually narrated the incident to the police authorities which was immediately written and he signed on the same and thereafter the police came to the place of occurrence. In view of such evidence on record, I am unable to accept that the first information report is ante dated or was subsequently manufactured. P.W. 1 further stated that he came to know of the incident from P.W. 3 and P.W. 4. P.W. 3 has corroborated such version. I am however, unable to accept the evidence on record with regard to the purported dying declaration of the victim made to P.W. 6 or P.W. 7 and P.W. 9 while he was being transferred to the hospital. This circumstance has been adduced for the first time in Court. P.W. 1 was present at the time when such purported statement was made by the victim. He however, does not speak of such vital fact in the first information report. Hence, it is possible the version of the victim narrating the name of the appellant who assaulted the victim before P.W. 6 in the presence of P.W. 1 or thereafter before P.W. 7 and P.W. 9. was subsequently introduced by the prosecution to bolster its case. He however, does not speak of such vital fact in the first information report. Hence, it is possible the version of the victim narrating the name of the appellant who assaulted the victim before P.W. 6 in the presence of P.W. 1 or thereafter before P.W. 7 and P.W. 9. was subsequently introduced by the prosecution to bolster its case. However, in the face of consistent evidence of the eye witness namely P.W.s 2 and 3 with regard to the assault of the victim and the prompt reporting of the incident to the police station resulting in registration of first information report at the police station by 12.30 p.m. wherein presence of the said witnesses are noted, I am of the opinion that prosecution case has been proved beyond reasonable doubt. Accordingly the conviction of the appellant under Section 304 Indian Penal Code is upheld. Mr. Mullick has argued that the facts and circumstances of the case show that the assault on the victim was an unintended one. It occurred in the course of casual banter resulting in this unfortunate yet unintended incident. He further submitted that the incident had occurred almost two decades ago. The appellant does not have any criminal antecedent. He prayed for reduction of the sentence. Mr. Banerjee, on the other hand submitted that injuries suffered by the victim were grave. He succumbed to the same. Having considered the facts and circumstances of the case and bearing in mind the fact that the incident had occurred in course of casual banter and there was no premeditation or motive on the part of the appellant to cause death of the victim and the fact that the appellant does not have any criminal antecedent and there has been a long passage of time in the meantime, I am of the considered opinion that substantive sentence imposed upon the appellant may be reduced to some extent. The appellant is directed to suffer rigorous imprisonment for three years and pay a fine of Rs.10,000/- in default to suffer simple imprisonment for six months more. Sentence imposed upon the appellant is accordingly modified. The appeal is allowed to the aforesaid extent. The bail bond of the appellant is cancelled. The appellant is directed to suffer rigorous imprisonment for three years and pay a fine of Rs.10,000/- in default to suffer simple imprisonment for six months more. Sentence imposed upon the appellant is accordingly modified. The appeal is allowed to the aforesaid extent. The bail bond of the appellant is cancelled. The appellant is directed to surrender before the trial Court within a month from date to serve out the sentence, as aforesaid, failing which the trial Court shall take necessary steps for execution of the sentence. The period of detention suffered by the appellant during investigation/inquiry/trial shall be set of from his sentence in terms of Section 428 of the Code of Criminal Procedure, 1973. Let copy of the judgment along with the lower court records be sent down to the trial Court at once. Photostat certified copy of the order, if applied for, be given to the parties on priority basis.