JUDGMENT : 1. Heard Mr. A. Ahmed, learned counsel appearing for and on behalf of the appellant as well as Mr. D. Das, learned Addl. P.P., Assam representing the State respondent. 2. This appeal is preferred against the judgment and order dated 18.12.2015, passed by the learned Addl. Sessions Judge (FTC), Karimganj in Sessions Case No. 43/2007, whereby the learned Addl. Sessions Judge convicted and sentenced the accused-appellant under section 304 (Part II) of the IPC, to undergo rigorous imprisonment (‘R/‘I) for a period of ten years along with fine of Rs. 25,000 and in default of fine, further R/I for a period of one year. 3. The case of the prosecution in nutshell is that, in the morning of 1.5.2006, informant Abdul Rashid's eldest and youngest sons, namely, Jamal Uddin and Ajim Uddin who had gone to the Sanibari Bazar for the purpose selling ‘jhinga’ (ribbed gourd), were returning with their bicycle after selling out the same. At about 9:30 a.m., when they arrived at the place of occurrence by the name Handirmukh/Baliuni, accused-persons, namely, Shiyab Uddin (present appellant), Helal Uddin, Abdul Razak and Abdul Bosa in a pre-planned manner started to quarrel and abuse them in filthy language on a false pretext. The said accused also got agitated and with intent to kill the informant's elder son (Jamal Uddin), started assaulting him furiously with rice-stick. As a result, serious injuries were caused to his head, hand and leg. As the situation started to get worsen his youngest son (Ajim Uddin) ran down to his house and informed about the occurrence. Having heard him scream the nearby people rushed and gathered in his house and learnt about the occurrence. In the meanwhile, police visited the place of occurrence and sent the injured to Karimganj Civil Hospital for treatment. It has also been alleged that the accused had stolen away the two bicycles of the informant's sons. 4. Narrating the incident, the informant filed an FIR before the in-charge of Longai P.P. on the same day and the FIR was received and forwarded to Karimganj Police Station for registering a case. Accordingly the Karimganj P.S. Case No. 173/2006, under section 147/325/379/506 of the IPC was registered. 5. Considering the seriousness of injuries sustained by injured Jamal Uddin, he was referred to the Silchar Medical College & Hospital (SMCH) on the same, where he succumbed to his injuries on 3.5.2006. Accordingly the Karimganj P.S. Case No. 173/2006, under section 147/325/379/506 of the IPC was registered. 5. Considering the seriousness of injuries sustained by injured Jamal Uddin, he was referred to the Silchar Medical College & Hospital (SMCH) on the same, where he succumbed to his injuries on 3.5.2006. After the death of injured, section 302 of the IPC was added to the case on the prayer made by the Investigating Officer. 6. On the basis of the said FIR, police started investigation of the case. During investigation, police recorded statement of witnesses, visited the place of occurrence, made seizure of the weapon of assault (bamboo ‘bang’) and arrested the accused-appellant Shiyab Uddin. The other accused could not be arrested and they remain absconded. 7. On completion of investigation, police submitted charge sheet in the case against accused-Shiyab Uddin, Abdul Rajak and Bosa Mia, under section 341/323/304/34, IPC. The learned Chief Judicial Magistrate, Karimganj after complying with the provisions of section 207, Cr.PC, committed the case to the Court of Sessions for trial. 8. On committal, the learned Sessions Court framed charge against the accused-persons under section 323/302/34 of the IPC. The particulars of the charges were read over and explained to the accused, to which they pleaded not guilty and claimed to be tried. 9. During the trial, the prosecution examined as many as 10 witnesses including the informant Abdul Rashid (PW. 1) and one of the injured/victim Abdul Basit (PW. 2), to prove the charges against the accused-persons, whereas the defence examined none. After completion of evidence, statement of the accused-persons were recorded under section 313, Cr.PC. In their examination, accused-persons denied all the charges levelled against them under section 323/302/34, IPC. 10. The learned trial court, at the conclusion of the trial held the accused Shiyab Uddin guilty under section 304 (Part II) of the IPC and sentenced him accordingly, as stated above. The other accused, namely, Abdul Rajak and Bosa Mia @ Abdul Sattar were acquitted from the offences and were set at liberty. 11. Being aggrieved by the aforesaid order of conviction and sentence, the present appeal has been preferred. 12. I have heard the submission of learned counsel for both the parties as well as perused the documents on record and the evidence adduced by the prosecution. 13. Mr. 11. Being aggrieved by the aforesaid order of conviction and sentence, the present appeal has been preferred. 12. I have heard the submission of learned counsel for both the parties as well as perused the documents on record and the evidence adduced by the prosecution. 13. Mr. A. Ahmed, the learned counsel for the appellant has urged before this court to consider the fact that the accused-appellant that the accused-appellant had no any intention to cause death of the injured, there being no animosity between the parties and the incident happened due to sudden fight between the parties. Moreover, the medical reports reveal that the injuries were simple in nature, which were not enough to cause death of the deceased and as such the accused is liable to be convicted only under section 323 of the IPC. 14. On the other hand, Mr. D. Das, the learned Addl. P.P., Assam has submitted that overwhelming evidence on record substantiate the proposition that because of the injuries dealt upon the victim Jamal Uddin on his head, he died at the Silchar Medical College Hospital on 3.5.2006. Accordingly it has been urged that accused deserves no consideration as he has already availed some benefit from the trial court for which instead of convicting the accused-appellant under section 302, IPC, he is convicted under section 304 (Part II) of the IPC. 15. I have also gone through the evidence on record. 16. PW. 1 Abdul Rashid, the father of the victims, in his evidence stated that one day about 14/15 months back when he was in the house he heard that his son Jamal Uddin had been killed, who had gone to Shanibari Bazar along with his another son Ajim Uddin for selling ribbed gourd. Accused-appellant Shiyab Uddin after quarrelling with him for something, assaulted him with a stick. The incident happened when they were returning from the market. The informant found his two sons at Karimganj Hospital and the injuries of Jamal Uddin was serious in nature. This witness stated that his son Jamal Uddin died at SMCH and he was 28 years old. In his cross-examination, the PW1 stated that the occurrence had taken place near the shop of Suhag. PW1 found accused Shiyab, Razzaq and others at hospital. He denied the suggestion given by the defence that he along with Badrul, Islam, Rashid, Kamal and Jalal assaulted Shiyab and Razzaq. 17. In his cross-examination, the PW1 stated that the occurrence had taken place near the shop of Suhag. PW1 found accused Shiyab, Razzaq and others at hospital. He denied the suggestion given by the defence that he along with Badrul, Islam, Rashid, Kamal and Jalal assaulted Shiyab and Razzaq. 17. PW2 Abdul Basit (another victim in the case) stated in evidence that on the date of occurrence, he along with his brother Jamal (since deceased) had gone to bazaar with ribbed gourd and during their return the occurrence had taken place. It was about 9/10 a.m. and they were coming by bicycle. Near Baliuni Masjid, they found accused Shiyab Uddin carrying vegetable ‘bhars’ with a ‘bang’ (bamboo stick usually meant for carrying vegetables on bamboo pots). Their cycle dashed with Shiyab's vegetable pot (‘dala’) as a result of which he started rebuking them. PW. 2's elder brother Jamal prayed for mercy saying that the same had accidentally happened. But then Shiyab Uddin struck twice on the head of his brother with ‘bang’ He tried to save him but could not succeed. Shiyab also assaulted him. Razzaq, Bosa and Hilal also fought with them with sticks which were made of wood. His brother fell down due to the injuries and later died at SMCH. He also regained sense at the hospital. In his cross-examination, the PW 2 stated that he could not say when he regained sense. The occurrence had taken place about 4/5 cubits away from Suhag's shop. About 20/25 cubits away there is another shop. There are houses in the nearby place. Accused stayed in the nearby place and they stayed 1½/2 miles away. After Shiyab assaulted them other accused appeared. The PW2 cannot say about what happened to their cycles afterwards. 18. On the other hand, the PW3 Abdul Kalam as well as PW7, Jalal Uddin claimed themselves to be the eye witnesses to the occurrence and they stated that hearing the commotion on the road, they went to the place of occurrence and saw that there was a fighting between the parties but they did not have knowledge as to the reason of fight. The PW3 found injured Jamal lying on the road where as the PW7 stated that accused Shiyab assaulted Jamal and as a result he fell down and sustained injuries. Abdul Basit (PW2) also sustained injury in the fight. The PW3 found injured Jamal lying on the road where as the PW7 stated that accused Shiyab assaulted Jamal and as a result he fell down and sustained injuries. Abdul Basit (PW2) also sustained injury in the fight. Then the nearby people saved Jamal and the accused fled away. Later on Jamal died at Silchar Medical College and Hospital. 19. PW5, Suhag Uddin and PW6, Samsul Hoque were declared hostile by the prosecution and they have stated that hearing the commotion at the place of occurrence, they went there and hearing about fighting between the parties, i.e., Abdul Basit, Jamal and the accused-persons and they saw that Jamal was lying injured on the road. In cross-examination both the witnesses denied to have seen the occurrence. 20. The prosecution has examined two Medical Officers, namely, PW4, Dr. F. Karim and PW. 8, Dr. B.C. Roy Medhi, to prove the injury report as well as the post mortem examination report. PW4 who examined both the injured at the first point of time has stated that on examination of Jamal Uddin, he found the following injuries: “(1) Lacerated injury over the right parietal region 1” × Vi” × Vi” & ¾” × Vi” × Vi” with surrounding haematoma 3” × 3”. (2) Abrasion left wrist 1” × 1” lacerated injury right wrist 1” × Vi” × Vi”. (3) Abrasion right wrist 1” × 1” lacerated injury right wrist 1” × Vi” × Vi” .” On examination of Abdul Basit, the PW4 found the following injury: “Abrasion on right wrist ½” × ¼” with haematoma 2” × 2”.” He has opined that the injuries were fresh and simple, caused by blunt weapon. In cross-examination, this witness stated that the haematoma and lacerated wound found by him on Jamal Uddin over parietal region was simple injury. He also deposed that the abrasion or lacerated injury Nos. 2 and 3 were superficial injuries that might be caused by jumping or fall. It is further stated by the PW4 in his cross-examination that the injury on Abdul Basit was simple and superficial injury. 21. Upon the post mortem examination, PW8 Dr. B.C. Roy Medhi found the following injuries over the dead body of Jamal Uddin: “Injuries: 1. Stitched wound (closed by one black silk stitch) measuring 2 cm × 0.2 cm. (lacerated wound) £ Scalp layers deep, present on lower part of left parietal region of scalp. 21. Upon the post mortem examination, PW8 Dr. B.C. Roy Medhi found the following injuries over the dead body of Jamal Uddin: “Injuries: 1. Stitched wound (closed by one black silk stitch) measuring 2 cm × 0.2 cm. (lacerated wound) £ Scalp layers deep, present on lower part of left parietal region of scalp. 2. One lacerated wound measuring 3 cm × 1 cm × muscle deep, on dorsal aspect of right wrist joint (defence wound). 3. One lacerated wound measuring 4 × 1 cm × skin deep, present on anterior surface of left leg on upper thigh. Blood clots found firmly adherent in all the above wounds. Cranium and spinal cord : Scalp— Same as injury No. 1 above. On dissection contusions found present in whole frontal, left temporal and left partial region. Skull— Fissure fracture present on left temporal bone. Blood clots found adherent firmly in fracture line. Vertebrae— Healthy. Membrane— Congested. A big extradural hematoma present over left temporal and part of left parietal lobe of brain. Brain— A relative depression present on left temporal and left parietal lobe underneath the haematoma. Contusions present on both parietal lobes. The brain was congested. Spinal cord— not examined.” In his opinion the death of deceased Jamal Uddin was due to coma as a result of head injury. The injuries were ante mortem and caused by blunt force impact and homicidal in nature. He opined that the approximate time of death was 8-12 hours. 22. Lastly the PW10, Sri Nishi Kanta Saikia, who investigated the case deposed about receipt of the FIR and investigation and seizure of bamboo stick from the place of occurrence and prepared the sketch map. He has exhibited all the relevant documents. In his cross-examination, the PW10, however, stated that injured Abdul Basit did not state before him about the assault made by accused Shiyab upon him. 23. The PW9, Sri Santosh Kumar Das simply submitted the charge sheet on the basis of the materials collected by the PW10. 24. He has exhibited all the relevant documents. In his cross-examination, the PW10, however, stated that injured Abdul Basit did not state before him about the assault made by accused Shiyab upon him. 23. The PW9, Sri Santosh Kumar Das simply submitted the charge sheet on the basis of the materials collected by the PW10. 24. On due appreciation of entire evidence on record and the incident what has happened in this case, it reveals that due to the sudden altercation between the parties resulted the fighting between them, since the bicycle of the deceased dashed against the “bhar” (some sort of basket used for carrying vegetable) and as a result the accused dealt blows on the head of the deceased by a bamboo stick causing injuries on the head of the deceased. After two days of the incident, the deceased succumbed to his injuries in the Hospital. 25. The materials on record reveals that there is no intention on the part of the accused-appellant to cause the death of Jamal Uddin but from his assault upon the head, which is a vital organ of the body, it can be held that he has the knowledge that such assault may cause death of a person. In such a backdrop of the case as well as on the basis of oral and documentary evidence it can be held that the accused has committed an offence punishable under section 304 (Part II) of the IPC. There appears no illegality or perversity in the findings of the trial court and the same has been arrived on proper appreciation of law and facts, which calls for no interference as regards the conviction. 26. However, considering the entire facts and circumstances of the case and also the facts that the accused-appellant is behind the bar since the date of judgment, i.e., 18.12.2015, the sentence awarded appears to be on the higher side. Thus, maintaining the conviction, the quantum of sentence is hereby reduced to rigorous imprisonment for four years, instead of ten years, as awarded by the trial court. However, the amount of fine shall remain intact. 27. With the above alteration/modification, the appeal stands allowed partly. 28. Return the LCR along with a copy of judgment immediately.