JUDGMENT 1. This Government Appeal is directed against the judgment dated 15.4.1997 passed by the Sessions Judge, Cuttack in S.T. Case No. 180 of 1996 acquitting the accused of the charge under Section 302, IPC. It may be noted here that while holding the accused not guilty for offence of murder under Section 302, IPC the learned trial Court has convicted him for commission of offence under Section 323, IPC. Challenging the same, the present Government Appeal has been filed. 2. The case of the appellant is that the deceased was the wife of elder brother of the respondent. On 4.6.1993 at around 7 A.M. the deceased was shouting that the respondent killed her hen. Hearing this, the respondent abused the deceased in obscene language and wanted to assault her. The deceased then challenged the respondent, scuffled ensued and the deceased fell down. After this the respondent sat over her and gave fist blows on the forehead, face and other parts of the deceased. When P.W.6 (daughter of the deceased) came to her rescue, the respondent lifted her and threw her on the ground. P.W.2 and others intervened in the matter and separated the parties. Thereafter, the respondent came with a Pitana and threatened to kill the deceased. When P.W.1 and others arrived there, the deceased narrated the incident to them. As the deceased sustained injuries, P.W.6 took her to Kolar hospital and as the doctor was not present there, they returned from there on foot. Thereafter, they went to Manijanga Hospital along with one Subash on foot. The doctor at Manijanga Hospital gave medicines. In spite of taking medicine, the condition of the deceased did not improve. On 6.6.1993, P.Ws. 5, 6 and 7 took the deceased to the Manijanga Hospital where she was administered saline but she died at night at about 10.30 P.M. P.W.5 lodged the FIR (Ext. 6) at Tirtol Police Station at about 12.30 A.M. After inquest, post-mortem was conducted at Jagatsinghpur Sub-Divisional hospital. As advised by the post mortem doctor the visceral contents were preserved and sent for chemical examination. The chemical examiner submitted the chemical examination report under Ext. 14. After completion of investigation, the police submitted charge-sheet against the respondent under Section 302, IPC. The plea of the respondent was of complete denial. 3. As advised by the post mortem doctor the visceral contents were preserved and sent for chemical examination. The chemical examiner submitted the chemical examination report under Ext. 14. After completion of investigation, the police submitted charge-sheet against the respondent under Section 302, IPC. The plea of the respondent was of complete denial. 3. The prosecution in order to prove charges examined as many as 11 witnesses including two doctors and three Investigating Officers and exhibited 14 documents and proved M.O.I. (Pitana). P.Ws. 1, 3, 5 and 7 are the post occurrence witnesses. P.W.7 who is the son of the deceased turned hostile while tendering evidence. P.W.2 (daughter of deceased) and P.W.6 are the eye-witnesses. P.W.4 examined the deceased on 6.6.1993 when she was brought before him in a semi-comma stage at around 9 P.M. The deceased expired at about 10.30 P.M. in Manijanga CHC where P.W.4 was a paediatric Specialist. P.Ws. 8, 9 and 10 are the I.Os. P.W.11 is the doctor who conducted post mortem examination. In his examination under Section 313, Cr. P.C. the respondent denied all the questions and took the stand that since Niranjan Babu (P.W.1) lost the Election, he has engineered this false case against him. From the side of the respondent no body was examined nor was any document filed. On completion of trial, the trial Court while holding the respondent not guilty for the offence of murder under Section 302, IPC and accordingly acquitting him of that offence, convicted him for commission of offence under Section 323, IPC and sentenced him to undergo R.I. for four months. 4. Mr. B.P. Pradhan, learned Additional Government Advocate submits that the materials on record clearly reveal a case under Section 304, IPC and not under Section 323, IPC. 5. Learned counsel for the respondent submits that there is no legal infirmity in the judgment of the trial Court and the respondent has been rightly acquitted of charges under Section 302, IPC. He further relies on a decision of this Court reported in State of Orissa vs. Subash Chandra Rath, 2006 (II) OLR 831 and contends that by now more than 14 years have lapsed since filing of the appeal and it would be a sheer travesty of justice to alter the finding of acquittal at this belated stage. 6. Perused the LCR. 6. Perused the LCR. P.W.1 has stated that on 4.6.1993, hearing the hullah he went to the spot at about 8 A.M. There he found the deceased weeping by uttering "MARI PAKAILA MARI PAKAILA." The respondent was standing at a distance holding a Pitana (M.O.I.). The deceased told him that the respondent had assaulted her. P.W.1 noticed that the deceased had sustained injuries on both sides of forehead. He wanted to bring about a compromise between the parties after the treatment. The deceased was taken to Manijanga hospital where she died. P.W.1 could not identify the Pitana which was shown to him. In the cross-examination nothing has been elicited to disbelieve his version. P.W.2 in his examination-in-chief has stated that at about 7 A.M. while passing by the side of the house of the deceased, he heard a hullah. He found the respondent holding a Pitana on the road. The deceased also came to the road. The respondent abused her and shouted to kill her. The respondent caught hold of her hair and threw her into paddy field where he gave her kicks and fist blows. P.W.6, the daughter of the deceased came to her rescue but the respondent chased her and assaulted her by giving fist blows and threw her on the ground after lifting her. When P.W.2 intervened, the respondent went inside his house. The deceased had swelling all over her face. After entering inside the house, the respondent again came out and abused the deceased. Three days thereafter, the deceased died. In the cross-examination he denied a suggestion that he had not witnessed any incident. P.W.3 in the examination-in-chief has stated that three days prior to the death of the deceased at about 7 A.M. the appellant had beaten her. He proved the seizure list. He further stated that he could not identify the Pitana (M.O.I.) shown to him. In the cross-examination nothing substantial has been elicited. P.W.4 in his examination-in-chief has stated that on 4.6.1993 he was attached to Manijanga CHC as Paediatric Specialist. On 6.6.1993 he examined the deceased, at 9 P.M. The deceased was in semi-coma stage. He found the following injuries:- "(1) One haematoma 4 cm x 3 cm below right eye. (2) An abrasion 1 cm x ½ cm on right elbow. P.W.4 in his examination-in-chief has stated that on 4.6.1993 he was attached to Manijanga CHC as Paediatric Specialist. On 6.6.1993 he examined the deceased, at 9 P.M. The deceased was in semi-coma stage. He found the following injuries:- "(1) One haematoma 4 cm x 3 cm below right eye. (2) An abrasion 1 cm x ½ cm on right elbow. (3) Multiple linear abrasions over right breast, total 12 in numbers." As the condition of the deceased was serious P.W.4 referred her to Jagatsinghpur hospital and immediately reported to the police. Before the patient could be taken to Jagatsinghpur, she expired at about 10.35 P.M. in the CHC. Accordingly, P.W.4 sent another report to the police after the death of the deceased. He proved the said report under Ext.2. He proved the inquest report under Ext.5. In the cross-examination he admitted that he had not mentioned about the name of the respondent in Exts.2 and 3. P.W.5 is the brother of the respondent. In his examination-in-chief he stated that the name of his another brother to be Krushna Das. Krushna and the accused were not pulling on well. His wife, two sons and three daughters were residing in village. In the morning, the deceased sitting on her Pinda was shouting and abusing in general that her hen had been killed on the previous day. The respondent then abused her in obscene language and wanted to assault her. The deceased went to him and challenged him. The respondent caught hold of her hair and gave fist blows over her forehead and threw her on the ground. When P.W.6 went to rescue her, the respondent lifted and threw her on the ground. P.W.2 and others intervened and separated them. Thereafter, P.W.6 took the deceased to the hospital at Manijanga and brought back from the hospital. Two days thereafter as her pain increased, in the evening P.W.5 and P.W.7 took her to Manijanga hospital. In the hospital she died at about 10 P.M. In that night P.W.5 lodged a report before the Police Station. He proved the report under Ext.6. In the cross-examination P.W.5 admitted that by the time he came to the scene of occurrence, 40 to 50 persons had already gathered and on his arrival he found .that the deceased had sustained injuries on her forehead (near her eyes). Thus P.W.5 cannot be described as an eye-witness. He proved the report under Ext.6. In the cross-examination P.W.5 admitted that by the time he came to the scene of occurrence, 40 to 50 persons had already gathered and on his arrival he found .that the deceased had sustained injuries on her forehead (near her eyes). Thus P.W.5 cannot be described as an eye-witness. P.W.6 is the daughter of the deceased. In her examination-in-chief she stated that the respondent used to quarrel with the deceased every now and then. In the morning her mother was shouting as her hen was killed by the respondent on the previous day. At this the respondent abused the deceased in obscene words and wanted to assault her. The deceased then challenged the respondent. Scuffle ensued and the deceased fell down, the respondent sat over her and gave fist blows on her forehead, face and others parts. When P.W.6 went to rescue the deceased, the respondent lifted her and threw her on the ground. Out of fear P.W.6 went to her home. P.W.2 intervened in the matter and separated the parties. Thereafter, the deceased narrated the incident to the villagers. As the deceased had sustained injuries, P.W.6 took her to Kolar hospital for treatment. As the doctor was not present in the hospital, they returned to the village and again went to Manijanga hospital. There the deceased was given medicine and they returned to the village at about 12.30 P.M. In spite of this, there was no improvement and three days thereafter the condition of the deceased became serious. Again the deceased was taken to Manijanga hospital in the evening by P.Ws. 5, 6 and 7. At the hospital the deceased died at about 10.30 P.M. In the cross-examination P.W.6 admitted that she and the deceased went to Kolar hospital and returned from there on foot and again they went to Manijanga hospital along with P.W.7 on foot. This shows that despite assault the deceased had the stamina and energy to walk to Kolar hospital and back and also to Manijanga hospital and back on the date of occurrence. The evidence of P.W.1 as well as the I.O. reveal that Manijanga CHC was 3 to 4 kilometers from Nagpura where the deceased resided. Thus on the date of occurrence after receiving blows the deceased has the stamina and energy to travel to and fro a distance of 7 to 8 kilometers on foot. The evidence of P.W.1 as well as the I.O. reveal that Manijanga CHC was 3 to 4 kilometers from Nagpura where the deceased resided. Thus on the date of occurrence after receiving blows the deceased has the stamina and energy to travel to and fro a distance of 7 to 8 kilometers on foot. Thus the death of the deceased which took place two days after the occurrence cannot be attributed to the blows dealt by the respondent. P.W.7 happens to be the son of the deceased. In his examination-in-chief he has stated that his uncle P.W.5 told him that the respondent had assaulted the deceased. He was not present in the village at that time. P.W.7 was permitted to be cross-examined by the prosecution under Section 154 of the Indian Evidence Act. When confronted with his previous statements, tie denied having made such statements. P.W.10 is the main I.O. in this case. He deposed that P.W.5 along with others arrived at the police station at about 00.30 A.M. on 7.6.1993 and reported the matter, which he reduced into writing. The same was read over to P.W.5 and after understanding the contents he signed it. Ext.6 was that report. Thereafter, P.W.10 took up investigation and proceeded to community health centre. P.W.4 and P.W.5 identified the dead body of the deceased. Then P.W.10 proceeded to the village and examined the witnesses. He visited the spot and prepared Ext.7. He seized the OPD register. He sent the dead body for post mortem examination and forwarded the respondent to the Court of the learned S.D.J.M. Jagatsinghpur on 8.6.1993 at 6 A.M. He seized the wearing apparels of the deceased. After receipt of post mortem examination report, he sent intimation to the A.D.M.O. Jagatsinghpur to send the viscera to S.F.S.L. Rasulgarh. He handed over the investigation to P.W.8. He further stated that P.W.3 did not state before him that he saw swelling over the face of the deceased and that her children were present there along with 30 to 40 persons. P.W.8 is the I.O. who took charge of the investigation from P.W.10. In his examination-in-chief he stated that, he sent one constable to F.S.L. Bhubaneswar to bring chemical examination report, but report was not received. On his transfer he handed over the charge to P.W.9. He was not cross-examined by the respondent. P.W.8 is the I.O. who took charge of the investigation from P.W.10. In his examination-in-chief he stated that, he sent one constable to F.S.L. Bhubaneswar to bring chemical examination report, but report was not received. On his transfer he handed over the charge to P.W.9. He was not cross-examined by the respondent. P.W.9 in his examination-in-chief has stated that he took charge of investigation from P.W.8. He made query to Medical Officer of Jagatsinghpur hospital who conducted the post mortem examination and obtained his report. Thereafter, he submitted charge sheet. In the cross-examination he denied a suggestion that there was no material and he submitted charge sheet without any basis. P.W.11 in his examination-in-chief has stated that on 7.6.1993, he conducted post mortem examination over the dead body of the deceased and found the following injuries:- "(1) Sub-conjunctival haemorrhage (2) Lacerated injury 1" below the right elbow on the anterior aspect 1" x 1/4" (3) Swelling of the right cheek (4) Ant bite mark over right breast (5) Ant bite mark over right buttock." P.W.11 opined that all the injuries were ante mortem in nature. The injuries might have been caused by blows with blunt and hard weapon. Even with a blow with hand with force could cause these injuries. Death might be due to reflex vagal stimulation on account of sudden blow below the ear leading to stoppage of heart beat. He also opined that injuries could not cause death under ordinary circumstances. In the cross-examination he admitted that he is an eye-specialist. He had no specialization in F.M.T. 7. On analysis of the evidence on record, it is crystal clear that after receiving the blows on 4.6.1993, the deceased had gone to different hospitals on foot and after receiving treatment had come back. Both P.W.1 and P.W.10 have stated that Manijanga Hospital is about 3 to 4 kilometers from the village Nagpura. This means on the date of assault the deceased had stamina and energy to travel to and fro a distance of 6 to 8 kilometers on foot. In such background the trial Court has correctly held that the blows dealt by the respondent could not be held as immediate cause of death of the deceased, which occurred two days after the assault took place. In such background the trial Court has correctly held that the blows dealt by the respondent could not be held as immediate cause of death of the deceased, which occurred two days after the assault took place. It may be noted here that as per the evidence the eye-witnesses like P.W.2 and P.W.6 the respondent has only given fist blows on the forehead and face of the deceased. In such background the death of the deceased cannot be described as homicidal. Further P.W.6 has clearly stated that after assaulting her mother, the respondent had come with a Pitana. So there is no evidence to show that the assault was done by the Pitana. 8. For all these reasons we also come to the finding that the death of deceased was not homicidal. Thus, the trial Court has correctly come to a conclusion that the blows given by the respondent did not cause death of the deceased. Hence the charges under Section 302, IPC have/had no legs to stand. It is needless to say that Section 304, IPC covers cases of culpable homicides not amounting to murder. So in order to attract the provision of Section 304, IPC proof of culpable homicide• is a must. Since there exists no proof of homicide in the present case, the question of attracting Section 304, IPC does not arise. In fact, in the present case, no case has been made out under Section 302, IPC. Even otherwise as per dictum laid down by this Court in State of Orissa vs. Subash Chandra Rath, 2006 (II) OLR 831 , it would be travesty of justice to alter the finding of acquittal at this belated stage. Accordingly, we find no merit in the present appeal and the Government Appeal is accordingly dismissed. Appeal dismissed.