JUDGMENT & ORDER : 1. This is an appeal preferred against the judgment and order dated 21-04-2015, passed by the learned Additional Sessions Judge, Jorhat, in Sessions Case No. 81(J-J) of 2013, convicting the accused/appellant under Section 304 Part-II of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years and also to pay a fine of Rs. 1,000/-, in default, further rigorous imprisonment for a period of two months. 2. I have heard Mr. N Dutta, learned senior counsel, assisted by Mr. D Talukdar, learned counsel appearing on behalf of appellant and Ms. S Jahan, learned Additional Public Prosecutor, Assam, for opposite party No. 1. 3. The prosecution case, in short, is that one Sri Dimbo Bora, SBO, Jorhat Electrical Sub-Division-1 was assaulted, causing injury by Sri Pinku Dutta, who was an employee of Jorhat ESD-II, APDCL, on 23.08.2011 at Garmur Control Room, APDCL, Garmur, during working hours. Sri Dimbo Bora, was taken to Jorhat Civil Hospital and after treatment for half an hour, he was declared dead by the doctors of the said hospital. The informant, Arindom Noukakhi, lodged an ejahar in respect to the said occurrence with the Jorhat Police Station. Jorhat Police registered a case, being Jorhat Police Station Case No. 586/11, under section 302 IPC and after completion of investigation and observing all required formalities, police submitted charge-sheet against the accused/appellant under section 302 IPC. 4. The learned Additional District and Sessions Judge, Jorhat framed a formal charge against the accused/appellant under Section 302 of the IPC. The accused/appellant pleaded innocence. 5. In this case, prosecution examined five witnesses and the defence examined two. The accused/appellant, in the statement recorded under Section 313 Cr.P.C., denied the accusation. 6. After conclusion of trial, learned Additional Sessions Judge, Jorhat found the appellant guilty under Section 304 Part-II IPC, and convicted him accordingly, as indicated above. 7. I have scanned the evidence of the witnesses led by prosecution and the defence. 8. PW1, Arindam Naukakhi is the informant. He got the information from one Pranjal Borkotoki, JE of Electrical Sub-Division that accused/appellant, Tinku Dutta manhandled Dimbo Bora, the deceased and he sustained injury. The deceased, Dimbo Bora and accused/appellant, Pinku Dutta are employees of Electrical Sub-Division No. 1 & 2 of Jorhat respectively. Deceased Dimbo Bora was a Switchboard operator and accused/appellant was working as helper of Lineman. He got the information from one Pranjal Borkotoki, JE of Electrical Sub-Division that accused/appellant, Tinku Dutta manhandled Dimbo Bora, the deceased and he sustained injury. The deceased, Dimbo Bora and accused/appellant, Pinku Dutta are employees of Electrical Sub-Division No. 1 & 2 of Jorhat respectively. Deceased Dimbo Bora was a Switchboard operator and accused/appellant was working as helper of Lineman. Putu Kalita and Bubul Dutta took deceased, Dimbo Bora, for treatment to Jorhat Medical Hospital, where the deceased succumbed to his injuries. PW1 admitted to have lodged the FIR after death of Dimbo Bora, vide Ext.1. 9. It has come out in the cross-examination of this witness that he came to know that accused/appellant, along with Putu Kalita and Bubul Dutta were repairing the electrical line at Garmur. The line in which the accused/appellant and the linemen Putu Kalita and Bubul Dutta were working falls under Sub-Division No.1 & 2 and was controlled by same control room. The main switch of a particular line remains shut down by the control room while any repairing work is carried out until the work is completed and intimated to the control room to switch on the same. This witness heard that on the date of occurrence, the deceased was the in-charge of the Control Room and the line was switched on without getting any intimation to switch on the same. 10. He also deposed that during the said incident deceased Dimbo Bora was In Charge of said control room. He admitted that he came to know from Putu Kalita and Bubul Dutta that before completion of their repairing work in the line, deceased Dimbo Bora switched on the line. He admitted that he did not know why and how accused Pinku Dutta manhandled the deceased Dimbo Bora. He denied to have not been informed by Pranjal Borkataky that accused Pinku Dutta manhandled deceased Dimbo Bora. He stated that during the time of incident deceased Dimbo Bora was aged about 55 years. 11. PW.2, Hori Kanta Bora, deposed in his evidence that the deceased was on duty as a Switch Board Operator in the control room, the deceased told him that he committed some error in switching on the electric connection. He stated that during the time of incident deceased Dimbo Bora was aged about 55 years. 11. PW.2, Hori Kanta Bora, deposed in his evidence that the deceased was on duty as a Switch Board Operator in the control room, the deceased told him that he committed some error in switching on the electric connection. This witness came to know from Dimbo Bora that two group of persons on the date of occurrence were doing some electrical work in two separate areas and one of the groups instructed him to switch on the line after five minutes, while the other group told him to switch on the line after half an hour. The Linemen, Bubul Dutta, Putu Kalita and accused/appellant Pinku Dutta went to work in R.T.I. line and instructed the deceased to switch off the line as they were working. On the same day, Bubul Dutta, Putu Kalita and the accused/appellant, Pinku Dutta along with one driver came to the control room and during that period deceased, Dimbo Bora, was sitting in his chair and he was in the bath room. He deposed that after seeing them, he came out from the bathroom and he sat in a chair near Dimbo Bora. 12. All these persons charged deceased Dimbo Bora as to why he had switched on the line while they were working and altercation ensued amongst them, and at that point of time, accused/appellant pushed the deceased Dimbo Bora. The deceased was about to fall, but he was caught hold of by PW2. The accused/appellant gave a fist blow and the deceased fell down and sustained injury and blood was oozing out from his nose. PW2 along with Bubul Dutta took the deceased to Jorhat Civil Hospital in a vehicle for treatment. He informed about the incident to the J.E., Pranjal Borkataky. Thereafter, the deceased died in the hospital. 13. During the cross-examination of PW2, his evidence remained intact on material points to the effect that he witnessed the accused/appellant and two others came to the deceased, had altercation with him and then, the deceased sustained injuries after falling on the floor on being given fist blow by the accused/appellant. 14. The evidence of PW.3, Pranjal Borkotoki, shows that the PW2 informed him about the occurrence and on getting the information, he rushed to the Jorhat Medical College Hospital where the deceased was hospitalised. 14. The evidence of PW.3, Pranjal Borkotoki, shows that the PW2 informed him about the occurrence and on getting the information, he rushed to the Jorhat Medical College Hospital where the deceased was hospitalised. He found blood oozing out from the nose of the deceased 15. The evidence of PW4, who is the son of the deceased, is that he got the information from a boy. He came to know about the occurrence from PW2. It is not found from this evidence that he has anything to implicate the accused/appellant except the information he gathered from PW2 about the occurrence. Thus, there is nothing as such in his evidence to be discarded by the defence. 16. PW.5, Sub-Inspector of Police, Ranjit Saikia, is the investigating officer of the case and in his evidence, he narrated the various stages of investigation including recording of statements of witnesses. He was entrusted with the investigation of the case by O/C, Jorhat Police Station. He completed the investigation after observing all formalities, and finally, submitted the charge-sheet against the accused/appellant under Section 302 of IPC. 17. The cross-examination of this witness that Jitu Bora did not state before him that Hori Bora (PW2) informed him that there took place some altercation between the accused/appellant and his father/deceased. Such evidence of this witness does not, at all, affect the merit of the case as for the findings recorded in the case, his evidence has not been acted upon as would be indicated in the later part of this judgment. 18. The deposition of C.W.1, Dr. Krishna Kamal Sharma, is as follows: “on 23.08.11, while he was working at Jorhat Medical College as Sub-divisional Medical Officer, dead body of Dimbo Bora was brought to the hospital ,being escorted by constable No.334 Sri Raju Nath, Jitu Bora and Khagen Boruah. He performed the post mortem examination on the said dead body on the same day at 5.45 p.m. and found the following: An average built dead body of an adult male, brought to post mortem without any definite rigor mortis. Severe bloods from nose and left ear seen. Bleeding from back of scalp is seen. Echymotic Changes with bruise seen on left side of face. On dissection of the scalp there is blood on the top of scalp on dissection of skull the subdural space, is filled with blood. Severe bloods from nose and left ear seen. Bleeding from back of scalp is seen. Echymotic Changes with bruise seen on left side of face. On dissection of the scalp there is blood on the top of scalp on dissection of skull the subdural space, is filled with blood. There is a depressed fracture of about 2”X3” size near the occipital area of skull bone. All the injuries were antemortem in nature. As per his opinion, the cause of death was due to coma as a result of injury sustained by the deceased. He proved the post mortem report as Ext.5 and his signature as Ext. 5 (1). In his cross examination he stated that he found only one external injury on the dead body. The age of the injury was about 10-12 hours but he has not mentioned the same in his post mortem report. He admitted that there is a possibility to sustain the injury which was found on the dead body by fall also. The injury sustained by the deceased was caused by blunt force impact. No external injury was found anywhere on the dead body except some echymotic changes with bruise on the left side of the face.” 19. D.W. 1, Putu Kalita, is found to have deposed in his evidence that he along with DW2, Bubul Dutta and the accused/appellant, went to the Switch Board Control Room, where the deceased was sitting and that there took place an altercation between the accused/appellant and the deceased in connection with switching on the electric line where the accused/appellant was working at the relevant point of time. He is found to have denied that the accused/appellant assaulted the deceased with a fist blow and pushed him down. 20. D.W.2, Bubul Ch. Dutta is also found to have stated in his evidence, in tune with DW1, that he and DW1 along with accused/appellant went to the Switch Board Control Room and there the accused/appellant had an altercation with the deceased. He also found to have denied assault on the person of the deceased by the accused/appellant and rather his evidence is that while coming towards them, rising from the chair, with a view to seek apology, the deceased got stuck and fell down. 21. It appears from the evidence above that PW2 is the eye witness of the occurrence. He also found to have denied assault on the person of the deceased by the accused/appellant and rather his evidence is that while coming towards them, rising from the chair, with a view to seek apology, the deceased got stuck and fell down. 21. It appears from the evidence above that PW2 is the eye witness of the occurrence. He was present at the place of occurrence along with the deceased. DW1 and DW2 although admitted in their evidence that they came to the place of occurrence and appellant, Pinku Dutta, had altercation with the deceased, yet they are found to have denied that accused/appellant, Pinku Dutta, gave fist blow to the deceased, Dimbo Bora, following which he fell down and sustained injury. 22. The evidence of PW2 to the effect that he was present along with the deceased at the time of occurrence and he witnessed the occurrence has nowhere been controverted and rather corroborated by the defence witnesses while they deposed that along with the accused/appellant they also went to the place of occurrence and there Pinku Dutta had altercation with the deceased. Further evidence of the DW2 that he along with the PW1 took the deceased to hospital, makes presence of the PW1 at the place of occurrence very clear. 23. The defence witnesses, in their cross-examination denied infliction of fist blow by the accused/appellant on the person of the deceased and that he was also pushed following which he fell down, but there is no reason to disbelieve the evidence of PW2, he being the only eye witness. The evidence of DW1 and DW2 do not inspire confidence of this Court in view of the eye witness account of the PW2 about the sequence of the events leading to the death of the deceased. 24. The contradictory versions given by DW1 and DW2 in respect of the fact of falling down of the deceased also makes them unreliable. Both of them have admitted that the deceased sustained injuries by falling from the chair while denying that the accused/appellant inflicted fist blow on the person of the deceased. DW1, Putu Kalita, and DW2, Babul went to the Control Room, to ask about the incident of switching on of the Control Board. Both of them have admitted that the deceased sustained injuries by falling from the chair while denying that the accused/appellant inflicted fist blow on the person of the deceased. DW1, Putu Kalita, and DW2, Babul went to the Control Room, to ask about the incident of switching on of the Control Board. Seeing them, the deceased immediately came towards them to seek apology and while coming towards them, he got stuck with the chair in which he was sitting, and fell down and became senseless. But DW2, Babul Dutta, deposed that seeing them, the deceased got nervous and fell down from the chair, he was sitting and became senseless. However, such evidence of the DW1 and DW2 is belied by the PW2. 25. That apart, the statement of the PW2 recorded under Section 164 Cr.P.C. tallied in toto with his evidence recorded in the Court as PW1. While it crystal clearly appears from the evidence, led by the prosecution, coupled with the support of medical evidence, the accused/appellant assaulted the deceased, causing injuries, resulting in death of the deceased, the defence failed to dislodge the evidence of the prosecution. The defence evidence failed to withstand the test of reliability. 26. Therefore, evidence on record makes it unequivocally appear that the deceased died due to the injuries caused to him by accused/appellant, Pinku Dutta, 27. To convict a person for the offence of murder, the intention of the person to cause the death is essentially required to be proved. The perusal of entire evidence on record reveals, that on the date of incident, while the accused was working on the electrical line, the deceased, who was working as Switch Board Operator in the Control Room, without getting the permission to switch on the said line, switched it on due to which the accused/appellant, who was working on the said line, got electrical shock provoking the accused/appellant to assault the deceased. The evidence, however, reveals that the accused/appellant assaulted the deceased with a single fist blow. 28. Perusal of entire materials on record show that the accused/appellant caused the death of the deceased. There is no doubt at all that the accused/appellant did not intend to cause death of the deceased. The evidence, however, reveals that the accused/appellant assaulted the deceased with a single fist blow. 28. Perusal of entire materials on record show that the accused/appellant caused the death of the deceased. There is no doubt at all that the accused/appellant did not intend to cause death of the deceased. The factors, necessary to be considered to ascertain the intention of the accused to cause death, are mainly the nature of injury, means of causing such injury and the number of the blows or force used in causing such injury. The eye witness account of the PW2 reveals that the accused/appellant assaulted the deceased with a fist blow due to which he fell down from the chair, he was sitting on, and sustained injury and due to the said injury he started bleeding from his nose. 29. The evidence of doctor (C.W 1) and post mortem report (Ext 5) also does not reveal anything otherwise against the accused. The evidence of doctor (C.W 1) and post mortem report (Ext 5) read in combination, show one external injury on the left side of the face of the deceased. The doctor (C.W1), during his cross examination, categorically stated that no external injury was found anywhere on the dead body except some echymotic changes with bruise on the left side of the face. 30. From the above discussions, it appears that the accused/appellant did not have the intention of causing death of the deceased; prosecution evidence is also silent on this aspect. No prudent person will believe that the single fist blow given by the accused/appellant caused the death of the deceased. So, this Court is of the opinion that there was no intention of the accused/appellant to cause death of the deceased. 31. During the course of hearing, the learned senior counsel for the appellant fairly submitted that the decision of the learned Court below holding the accused/appellant guilty of commission of offence under Section 304 Part-II IPC, is based on the evidence on record. 32. The learned senior counsel for the appellant argued for reduction of punishment of the accused/appellant to the period of sentence already undergone. It is submitted that the accused/appellant was in jail for 2 years 1 month. It is further submitted that the accused/appellant is about 41 years of age having children to maintain. 32. The learned senior counsel for the appellant argued for reduction of punishment of the accused/appellant to the period of sentence already undergone. It is submitted that the accused/appellant was in jail for 2 years 1 month. It is further submitted that the accused/appellant is about 41 years of age having children to maintain. Therefore, he has appealed the Court to be lenient to the appellant in respect of punishment. 33. He has referred to the decision of the Hon’ble Supreme Court in the case of Sarup Singh -vs- State of Haryana, represented by the Home Secretary, reported in 1995 Cri. L. J. 4168 and drawn the attention of the Court particularly to paragraph-5 of the said decision where the Hon’ble Supreme Court reduced the sentence of an accused/appellant under Section 304 Part-II IPC to the period already undergone by him but, in addition, has was directed to pay fine of Rs. 20,000/- by way of compensation under Section 357 Cr.P.C. 34. Learned senior counsel for the accused/appellant further refers to the decision of the Hon’ble Supreme Court in the case of K. Ramakrishnan Unnithan -vs- State of Kerala, reported in AIR 1999 SC 1428 (1). In this case, the Hon’ble Supreme Court reduced the sentence of an accused under Section 304 Part-II of the IPC to the period already undergone, i.e., 4 years. In this case, the Hon’ble Supreme Court considered that 13 years elapsed from date of the incident till the judgment and during that period the accused was in bail. 35. Learned Additional Public Prosecutor, referring to the decision of the Hon’ble Supreme Court in the case of Tulsi Ram Etc. -vs- State of Uttar Pradesh, reported in (1963) Supp (1) SCR 382: AIR 1963 SC 666 , submitted that in this case the Hon’ble Supreme Court, on consideration of extreme youth of the accused persons, along with some other grounds, sentenced them to the period already undergone. 36. After hearing both sides and in consideration of the decisions referred to by the learned senior counsel for the accused/appellant and the learned Additional Public Prosecutor for the State, and the nature of injuries inflicted by the accused/appellant on the person of the deceased taken together with his age, i.e. 41 years, this Court is of the considered view that the substantive punishment of rigorous imprisonment of five years be reduced to rigorous imprisonment of four years. 37. 37. The appeal is, accordingly, partly allowed modifying only the substantive sentence of imprisonment as indicated in the foregoing paragraph from five years to four years. 38. The appeal is disposed of accordingly. 39. Send down the LCR.