JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. Y.S. Mannan, learned counsel appearing for and on behalf of the appellant as well as Mr. M.P. Goswami, learned Addl. P.P., Assam representing the State respondent. 2. This appeal is directed against the judgment and order dated 04.07.2014, passed by the learned Sessions Judge, Bongaigaon in Sessions Case No.88(D)/2012 (corresponding to G.R. Case No.314/2006), convicting the accused/appellant under Section 304 Part-II of the IPC, sentencing him to undergo rigorous imprisonment for 7 (seven) years and also to pay a fine of Rs. 1000/- (Rupees one thousand), in default of payment of the fine, the accused shall undergo further rigorous imprisonment for six months. 3. The case of the prosecution in brief is that, the informant Pabitra Barman lodged an FIR before the O.C., Dhalogaon P.S., on 21.06.2006, alleging inter alia that on 03.06.2006, when his brother Nakul Barman went to the house of one Kanteswar Barman on the occasion of his son s marriage at village Hashrawbari, on that date at about 10 P.M., accused Madhab Barman along with four others restrained him on the way and assaulted him for which he sustained severe injuries on his person. He was taken to Guwahati Medical College & Hospital (GMCH), where he died on 20.06.2006. It was alleged that the accused persons are responsible for the death of Nakul Barman. 4. On the basis of the FIR, the Dhalogaon P.S. registered the G.R. Case No.314/2006 and after due investigation, charge sheet was submitted against five accused persons. During the course of trial, apart from the accused Madhab Barman, four other accused were sent to Juvenile Justice Board for favour of trial, they are being juvenile, after ascertaining the age of the accused persons. 5. The present accused/appellant faced the trial along before the Court of Sessions Judge, Bongaigaon and denied the charge that was framed under Section 302 of the IPC. To substantiate the charge, the prosecution examined 10 witnesses but the defence examined none. The plea of the defence is of total denial. The statement of the accused was recorded under Section 313 of the CrPC, wherein also he has denied all the allegation. At the conclusion of the trial, the learned trial Court find the accused guilty under Section 304 Part-II of the IPC and sentenced him as aforesaid. 6. The plea of the defence is of total denial. The statement of the accused was recorded under Section 313 of the CrPC, wherein also he has denied all the allegation. At the conclusion of the trial, the learned trial Court find the accused guilty under Section 304 Part-II of the IPC and sentenced him as aforesaid. 6. Being aggrieved by the aforesaid judgment and conviction, the present appeal has been preferred on the ground that the findings of the learned trial Court is erroneous in as much as there is no adequate evidence to find and hold the accused guilty on any of the offence. 7. The learned counsel for the appellant Mr. Y.S. Mannan, by referring to the evidence on record and has strenuously argued that the peculiar circumstances that has emerged in this case is highly unsatisfactory to hold that the accused was responsible for the death of deceased Nakul Barman. It is also pointed out that even the medical report did not support that there was any injury on the person of the deceased so as to hold that the accused person inflicted the vital injury on the person of the deceased. The learned Trial Court failed to appreciate all the factual ground as well as the delay in filing the FIR, while appreciating the matter which has resulted the failure of justice, it contends. 8. I have also heard the submission of learned Addl. P.P., Assam, Mr. M.P. Goswami, who has however submitted that the evidence of PW.5 is clear and specific that the accused dealt some sort of injury upon the deceased prior to some days of death and the Doctor has also found some sort of injuries in the medical report and reading the matter as a whole, it can be arrived that the deceased died out of injury caused by the accused person. 9. I have given due consideration to the submission made before this Court and also gone through the evidence on record, both oral and documentary. 10. As has been highlighted by the learned counsel for the appellant, there are some peculiar circumstances that emerged in the present case. Admittedly the occurrence took place on 03.06.2006, while the deceased Nakul Barman went to the house of one Kanteswar Barman to attend the marriage of his son and after attending the marriage party, deceased Nakul Barman returned home. 11. Admittedly the occurrence took place on 03.06.2006, while the deceased Nakul Barman went to the house of one Kanteswar Barman to attend the marriage of his son and after attending the marriage party, deceased Nakul Barman returned home. 11. Pw.1 Pabitra Barman, PW.2 Jagannath Barman and PW.3 Nishi Barman are the brothers of deceased Nakul Barman and their evidence reveals that after taking dinner in the house of Kanteswar Barman, deceased Nakul Barman returned home and later on they came to know that there was a marpit (assault) between the accused and deceased Nakul Barman in the house of Kanteswar Barman. But Nakul Barman reported nobody about such assault, made by any of the accused person. According to the PW.1, after three days of the occurrence, Nakul Barman went to Guwahati to the house of PW.2, his elder brother and said PW.2, in his evidence also has stated about coming of Nakul Barman to his house. According to the PW.2, deceased Nakul Barman came to their house at Guwahati on 18.06.2006 and he told him that he was assaulted by the accused when he went to the house of Kanteswar Barman, at his leg and chest. But on the next day, as Nakul complained of some illness, he was taken to GMCH on 20.06.2006 and he died in the Hospital. None of these witnesses have personal knowledge of the matter and all are hearsay evidence. 12. So far the evidence of PW.4 Sushil Barman, PW.6 Kanteswar Barman and PW.7 Monoranjan Roy are concerned, it can be seen that they have only heard about the incident that there was a marpit where the accused person assaulted Nakul but they are not eye witness to the occurrence nor they have any personal knowledge of the same as the said Nakul Barman never told them about the incident, although they are all residents of the same village and neighbours. The only eye witness to the occurrence is PW.5 Mani Kanchan Barman, who has stated that on the day of occurrence while he was going to his house, he saw that Nakul was assaulted by accused Madhab by using hand and legs but however he has not indicated the nature of injuries sustained by deceased in the said incident. He then disclosed that after few days, Nakul died in the GMCH. He then disclosed that after few days, Nakul died in the GMCH. All these witnesses PW.4 to PW.7 have stated that the deceased used to take alcohol. 13. From the entire evidence it appears that Nakul did not say anything about the incident to his brothers or to any persons of the locality and he normally returns home after the incident and then went to Guwahati to the house of his brother/PW.2. Nobody said that they saw any injury on the person of the deceased Nakul. Now even though the PW.2 has stated that Nakul stated before him about the assault made by the accused Madhab but he also did not mention any sort of serious injuries on the person of the deceased and according to him, Nakul showed him some finger impression on his neck, chest and leg. But the said statement of the PW.2 and PW.5 is not supported by the medical evidence. 14. The PW.9 Dr. Malenkav Phukan who happened to conduct the post mortem examination on the body of the deceased has given the findings as below: No external injury seen. No marks of ligature. Only congestial, infarct dark coloured area seen in the endocardium of the left vertical. Size is around X X 1 , just above apex of the heard. Viscera are normal and nothing abnormality seen. Other organs are healthy and normal. He has opined that death was due to acute cardiac arrest due to Ischemia (Infraction) which leads to acute cardio-respiratory failure. In his cross-examination also he has averred that there was no any external injury on the body of the deceased and due to taking of excessive alcohol acute cardio-respiratory failure may occur. 15. Such findings of the Medical Officer never lend support to any proposition that the deceased died out of any sort of injury on his person to support the evidence of PW.2 and PW.5. 16. On examination of the impugned order and judgment it appears that the learned trial Court has based upon its findings on the evidence of PW.5, and the Medical Officer (PW.9), about the injury stated to have sustained by the deceased but the medical report itself reveals only about some dark coloured area in the Endocardium of the left vertical, size about X X 1 but he has not indicated any injury. It has been clearly stated by the Medical Officer that such a cardio-respiratory failure happens due to acute cardiac arrest or may resulted for taking excessive alcohol. So the question of sustaining injury on the person of the deceased is not at all proved. The evidence of PW.5 also indicated only about simple marpit or assault on the person of the deceased by the accused person but he never indicated that such an assault was attempted at the vital part of the body of the deceased which may result to death. Even such an aspect can hardly be indicated that the death of the deceased in the given circumstances is caused due to the incident happened on 03.06.2006 and the deceased died on 20.06.2006, with no sort of injury on his person. There was also no reporting of injury immediately after the occurrence by the deceased and nobody witnessed any injury on his person. After the incident, the deceased naturally went to his house and after few days he again went to Guwahati, where he complained of illness and died out of cardio-respiratory failure. With this background, we must acknowledge that there was no evidence to connect the accused with the offence of murder or even culpable homicide not amounting to murder. 17. The definition of Section 299 of the IPC described culpable homicide as below: 299. Culpable homicide.-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Section 300 of the IPC describes when culpable homicide as murder: 300. Section 300 of the IPC describes when culpable homicide as murder: 300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. . Section 304 of the IPC prescribes punishment for culpable homicide not amounting to murder. 18. The gist of the offence is to prove that while inflicting such type of injury on a person, the accused might have intention to cause death or the knowledge that such injury is likely to cause death by such act. 19. . Section 304 of the IPC prescribes punishment for culpable homicide not amounting to murder. 18. The gist of the offence is to prove that while inflicting such type of injury on a person, the accused might have intention to cause death or the knowledge that such injury is likely to cause death by such act. 19. Now in the given case, except giving a picture of simple assault upon the deceased without indicating the portion of assault and the impact thereof, there can be hardly any scope to hold that the accused intended to cause death of the deceased or has knowledge that such assault was sufficient enough to cause death of the deceased. Nothing emerges from the evidence that such assault was made on the vital portion of the deceased as per the eye witness (PW.5). 20. That being the position, the assumption or presumption made by the learned trial Court to embrace the accused with the offence charged, is not proper and hence not sustainable. 21. In view of the discussion and evidence discussed above, this Court constrained to hold that such a finding arrived at by the Court below is liable to be set aside. Accordingly the impugned judgment and order passed by the learned Sessions Judge, Bongaigaon, in Sessions Case No.88(D)/2012 (corresponding to G.R. Case No.314/2006), is hereby quashed and set aside and the accused person is set at liberty forthwith. 22. The appeal stands allowed accordingly. Return the LCR along with a copy of this judgment immediately.