JUDGMENT : 1. The instant Criminal Appeal has been preferred against the judgment of conviction dated 10.12.2003 and order of sentence dated 11.12.2003, passed by learned Sessions Judge, Giridih, in Sessions Trial No. 201 of 1998, whereby the sole appellant has been convicted for the offence committed and punishable under Sections 304, 448 and 323 of the Indian Penal Code and has been awarded rigorous imprisonment for seven years for offence committed and punishable under Section 304 of the Indian Penal Code, rigorous imprisonment for six months each for offence committed and punishable under Sections 448 and 323 of the Indian Penal Code. All the sentences are directed to run concurrently. 2. The prosecution case is based upon the fardbeyan of Ramchandra Thakur (P.W. 2), recorded by Sub-inspector of police, J. N. Singh, Officer-in-charge, Bengabad Police Station, on 25.07.1997 at 20.00 Hrs. in village Mahuar, where the informant has alleged, that on 22.07.1997 at around 12 noon, when the informant returned after ploughing his paddy field, co-villager, Govind Thakur (appellant), came to his house and started abusing by asking “why your cattles have grazed my maize crops”. The informant replied, that some maize crop might have been grazed by the Ox during ploughing, upon which, the appellant started quarreling and assaulting the informant by fist and slap. When the mother of the informant came, she was also assaulted by fist and slap, in the meantime, the father of the informant, who was inside the house, came out, he was also assaulted by fist and slap, due to which father of the informant fell down, who was taken on the bed, as he was not keeping well and was under treatment. The informant has further stated, that suddenly on Thursday, 24.07.1997 at 11.00 P.M., father of the informant died and thereafter, informant has given his fardbeyan to the police on 25.07.1997. 3. On the basis of the fardbeyan of the informant, police has registered Bengabad P.S. Case No. 55 of 1997, dated 25.07.1997, under Sections 448/304 of the Indian Penal Code. 4. After investigation, the police submitted charge sheet vide charge sheet no. 73 of 1997, dated 21.10.1997, under Sections 448/304 of the Indian Penal Code against the appellant. 5. The cognizance of the offence has been taken vide order dated 11.11.1997 and the case has been committed to the Court of Sessions vide order dated 09.09.1998. 6. 4. After investigation, the police submitted charge sheet vide charge sheet no. 73 of 1997, dated 21.10.1997, under Sections 448/304 of the Indian Penal Code against the appellant. 5. The cognizance of the offence has been taken vide order dated 11.11.1997 and the case has been committed to the Court of Sessions vide order dated 09.09.1998. 6. The charge has been framed against the sole appellant on 18.03.1999, under Sections 304, 448 and 323 of the Indian Penal Code, to which the appellant has pleaded his innocence and thus, he was put under trial. 7. The prosecution, to prove its case, has examined altogether five witnesses and also exhibited a number of documents. Tusia Devi, mother of the informant, has been examined as P.W. 1, Ramchandra Thakur, informant of the case, has been examined as P.W. 2, Dr. Kaushalendra Kumar, who has conducted the post-mortem examination of the deceased Chetan Thakur, has been examined as P.W. 3, Tuplal Pasi, being an inquest witness, has been examined as P.W. 4 and Gulam Rabbani, an Advocate Clerk and a formal witness, has been examined as P.W. 5. Signature of the informant, on the fardbeyan, has been proved and marked as Exhibit- 1, signature of Tuplal Pasi, on the carbon copy of the inquest report, has been proved and marked as Exhibit- 1/1, Post-mortem Report has been proved and marked as Exhibit- 2 and formal F.I.R., proved by formal witness (P.W. 5), in handwriting and signature of the then Officer-in-Charge, Jitendra Narayan Singh, has been marked as Exhibit- 3. 8. After closure of the prosecution evidence, the statement of the accused/appellant has been recorded under Section 313 Cr.P.C. on 26.09.2001, where the accused/appellant has denied about the occurrence or any material against him. 9. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence against the appellant. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, passed by the learned Trial Court, the appellant has preferred the present criminal appeal before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsel for the appellant, Mr. Tarun Kumar Sinha, Advocate. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, passed by the learned Trial Court, the appellant has preferred the present criminal appeal before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsel for the appellant, Mr. Tarun Kumar Sinha, Advocate. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that the deceased died because of his illness. Learned counsel for the appellant has further submitted that there is delay in lodging the F.I.R., as the F.I.R. has been lodged on 25.07.1997 while the deceased died on 24.07.1997 at 11.00 P.M., whereas as per the F.I.R., the alleged occurrence took place on 22.07.1997. Learned counsel for the appellant has drawn attention of this Court towards Exhibit- 2, i.e. the Post-mortem Report. As per the post-mortem Report, neither any sign of external or internal injury was found on the person of the deceased nor the doctor has given any opinion regarding the death of the father of the informant. Learned counsel for the appellant has further submitted, that for convicting the appellant under Section 304 of the Indian Penal Code, the prosecution must establish, that because of the act committed by the accused/appellant, the person died, which is homicidal not amounting to murder but in the present case there is no evidence on the part of the prosecution to establish, that because of the act committed by the appellant, Govind Thakur, the father of the informant Chetan Thakur died, as doctor has not found any external or internal injury nor has given any definite opinion regarding cause of death of the father of the informant, in the background that Chetan Thakur (father of the informant) was not keeping well and was under treatment and as such, the appellant may be acquitted of the charge and conviction under Section 304 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that prosecution has not alleged against the appellant, that the appellant has entered into the house of informant with an intention to commit some offence, which is required to constitute an offence under Section 448 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that prosecution has not alleged against the appellant, that the appellant has entered into the house of informant with an intention to commit some offence, which is required to constitute an offence under Section 448 of the Indian Penal Code. As per the prosecution case, the informant has alleged that, as soon as he reached to his house after ploughing the paddy field, the appellant, Govind Thakur came to his house and started abusing and thereafter has assaulted the informant, his mother and his father by fist and slap, but nowhere in the F.I.R. or in his deposition as P.W. 2, the informant has alleged, that appellant entered into his house with such intention and as such, the conviction of the appellant under Section 448 of the Indian Penal Code cannot sustain in the eyes of law. House-trespass has been defined under Section 442 of the Indian Penal Code, which reads as follows: “Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”. Learned counsel for the appellant, has further submitted that nowhere the prosecution has alleged against the appellant, that appellant entered into or remained in the building or premises of the informant and as such, the conviction of the appellant under Section 448 of the Indian Penal Code cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that no case under Section 323 of the Indian Penal Code is made out against the appellant, as the prosecution has not alleged anything against the appellant, of causing any hurt, as defined under Section 319 of the Indian Penal Code, which is punishable under Section 323 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that the impugned judgment of conviction and order of sentence cannot sustain in the eyes of law and appellant is entitled for benefit of doubt, as the doctor has not opined the cause of death, which is required for conviction of the appellant under Section 304 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that the impugned judgment of conviction and order of sentence cannot sustain in the eyes of law and appellant is entitled for benefit of doubt, as the doctor has not opined the cause of death, which is required for conviction of the appellant under Section 304 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that the investigating officer of the case has not been examined, which has caused serious prejudice to the appellant, as the appellant could not get an opportunity to cross-examine the investigating officer to elucidate the fact with respect to manner of occurrence and place of occurrence and reason for not lodging the First Information Report on 22.07.1997, as P.W. 1, mother of the informant has stated during her examination in court, that on the alleged date of occurrence, her son has informed the police and the police also verified and enquired about the matter, but the same has not been brought on record by the prosecution and as such the appellant has been seriously prejudiced because of non-examination of the investigating officer, and thus, deserves benefit of doubt. 11. Heard, learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record. Learned counsel for the State has further submitted, that though the father of the informant was old but when the appellant assaulted the informant as well as mother of the informant, the father of the informant, being an old man, came out of the house but was also assaulted due to which, he fell down and subsequently, died after two days. Learned counsel for the State has further submitted, that informant has not lodged the case on the date of occurrence i.e. on 22.07.1997, as he has no intention to implicate the appellant, but when his father died on 24.07.1997, he informed the police about the death of his father, being a cognizable offence, an F.I.R. has been lodged and as such, there is no delay in lodging the First Information Report. Learned counsel for the State has further submitted, that entering into the house or coming to the house have the same meaning in the present facts and circumstances of the case and as such, learned Trial Court has rightly convicted the appellant. Learned counsel for the State has further submitted, that there is consistent evidence of assault by the appellant upon the informant, his mother (P.W. 1) and the deceased, Chetan Thakur and as such, the learned Trial Court has rightly convicted the appellant under Sections 304, 448 and 323 of the Indian Penal Code. 12. Heard, learned counsel for the appellant, Mr. Tarun Kumar Sinha, Advocate and learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor and on perusal of the evidence brought on record i.e. the First Information Report, framing of charge, evidence of five prosecution witnesses, three exhibits, statement of the appellant under Section 313 Cr.P.C. and the impugned judgment, this Court has found, that doctor has not given any opinion with respect to death of deceased Chetan Thakur in his post-mortem report, which has been proved and marked as Exhibit- 2, by Dr. Kaushalendra Kumar (P.W. 3). The doctor has categorically mentioned that there is no external or internal injury on the person of the deceased, as such, he has not given any opinion with respect to the death of deceased. This Court has also scrutinized the evidence of Tusia Devi (P.W. 1), mother of the informant and wife of the deceased. She has categorically stated during her cross-examination in paragraphs- 4 to 7 that information was given to the police on the same date of alleged occurrence. This witness has further stated that, she has stated before the police that appellant Govind Thakur has assaulted her husband on the chest by fist. The health of her husband was not keeping well and was under treatment at that point of time, but curiously enough, the doctor has not found any injury on the chest of the deceased nor the information, which was given by the son of this witness to the police on the alleged date of occurrence has been brought on record. The fardbeyan, is the basis of the F.I.R., which has been instituted, by the police. The fardbeyan, is the basis of the F.I.R., which has been instituted, by the police. The informant has not stated any specific allegation against the appellant of assaulting his father, rather it appears that on a petty issue of grazing maize crop by the Ox of the informant, the occurrence took place in which, it is alleged by the prosecution, that appellant has assaulted the informant, his mother and father but no such injuries were found on the person of the deceased, which is the cause of death of the deceased. Dr. Kaushalendra Kumar (P.W. 3) has conducted the post-mortem examination of the deceased and has categorically stated, that no definite cause of death can be ascertained during the course of post-mortem examination, rather stomach contains semi-digested food materials, meaning thereby that deceased was in a condition, even after the occurrence, to take meal and as such, it cannot be accepted, that deceased died because of assault made by the appellant in absence of any legal evidence. Tuplal Pasi, inquest witness, has proved his signature on the carbon copy of the inquest report, which has been marked as Exhibit- 1/1, but he has categorically stated, that his statement was not recorded by the police nor the paper on which he put his signature was read over to him by the police, rather the witness has said that Chetan Thakur was an old and weak person. Gulam Rabbani, an Advocate Clerk and a formal witness has proved the signature of the Officer-in-charge, on the formal F.I.R. which has been marked as Exhibit- 3. 13. From perusal of the evidence brought on record including the Post-mortem Report, this Court is of the opinion, that in absence of any allegation proved by the prosecution, that person died because of assault made by the appellant, who has no intention to kill the person and as such, the person is guilty of homicidal not amounting to murder. 13. From perusal of the evidence brought on record including the Post-mortem Report, this Court is of the opinion, that in absence of any allegation proved by the prosecution, that person died because of assault made by the appellant, who has no intention to kill the person and as such, the person is guilty of homicidal not amounting to murder. In the present case, prosecution has miserably failed to prove that deceased died because of the act of omission or commission by the appellant, as such the appellant cannot be convicted under Section 304 of the Indian Penal Code and in absence of any evidence with respect to ingredients of an offence defined under Section 442 of the Indian Penal Code, as there is no averment that appellant has entered into the house of the informant, committing the house trespass as defined under Section 442 of the Indian Penal Code coupled with the fact that the investigating officer of the case has not been examined, appellant cannot be convicted under Section 448 of the Indian Penal Code. 14. Accordingly, the appellant is acquitted of the charge and conviction under Sections 304 and 448 of the Indian Penal Code by giving benefit of doubt. So far, the conviction of the appellant under Section 323 of the Indian Penal Code is concerned, there is consistent evidence of P.W. 1 (Tusia Devi), P.W. 2 (Ramchandra Thakur) on the point that they were assaulted along with father of the informant by the appellant, by means of fist and slap. The learned Trial Court has rightly convicted the appellant and awarded rigorous imprisonment for six months, which, according to the learned counsel for the appellant, has already been served by the appellant, as he remained in custody from 22.07.1997 till 17.11.1997 and after conviction from 10.12.2003 to 16.04.2004, a total period of eight months, which is more than the period awarded to the appellant for offence committed and punishable under Section 323 of the Indian Penal Code by the learned trial court. 15. 15. In the result, the impugned judgment of conviction dated 10.12.2003 and order of sentence dated 11.12.2003, passed by learned Sessions Judge, Giridih, in Sessions Trial No. 201 of 1998, in connection with Bengabad P.S. Case No. 55 of 1997, corresponding to G. R. No. 1219 of 1997, is hereby set aside with respect to the charge and conviction under Section 304 and 448 of the Indian Penal Code by giving benefit of doubt and is upheld and affirmed with respect to the charge and conviction under Section 323 of the Indian Penal Code. Since the appellant has already served out the sentence, as submitted by the learned counsel for the appellant, there is no need of sending the appellant to custody. Learned Trial Court is directed to verify the fact from the record. 16. The appellant, who is on bail, his bail bond is cancelled but the appellant shall not be taken in custody, if he has already served out the sentence as awarded under Section 323 of the Indian Penal Code. 17. Accordingly, the present criminal appeal is partly allowed with modification in sentence. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.