JUDGMENT : 1. Heard Mr. S. Lodh, learned counsel appearing for the appellant. Consecutively for three days, despite giving accommodation Mr. B Choudhury, learned Public Prosecutor has not participated in the hearing. In such circumstance, this Court does not have any other alternative but to deliver the judgment on the basis of the records. 2. It is further to be noted that Mr. Lodh, learned counsel appearing for the appellant had completed his submission on 02.04.2019 and on the request of Mr. Choudhury, learned PP, on that day, the matter was fixed on 09.04.2019 for further hearing. Again, on 09.04.2019, at the request of Mr. Choudhury, the matter was deferred for today. In the order dated 09.04.2019, this court had categorically observed as follows: “No further accommodation would be made on the next date.” 3. The matter was taken up today in the first session of the Court and it was mentioned before the Court that Mr. Choudhury was busy in the Court No. 1. But in the second session, when there is no proceeding before the Court No. 1, Mr. Choudhury was still un-available before this Court. This Court waited for some time for his appearance, but he preferred not to appear. 4. This is an appeal by the convict from the judgment and order of conviction and sentence dated 07.09.2017 delivered in ST 57 (T-1) of 2015. By the said judgment, the appellant has been convicted under Section 304 Part-II of the IPC and sentenced to suffer rigorous imprisonment for three years with a fine of Rs.50,000/- with default stipulation. 5. The genesis of the prosecution can be located in the oral ejahar filed by one Anita Gope (PW1) to the Officer-in-Charge, Airport Police Station on 30.11.2013 revealing that her husband namely, Sujit Gope was severely assaulted by the appellant on 22.11.2013, almost in the midnight. When the appellant was abusing her husband, she came out from their house and asked him not to abuse him, but the appellant dragged her husband away to his room forcibly and dealt blows on his belly with a wooden file. PW1 has further stated that she rescued her husband, but in the meanwhile, he had suffered injury at his belly. On the following day, i.e. 23.11.2013 she got her husband admitted in the GBP Hospital, Agartala. On 30.11.2013 her husband died in the said hospital. PW1 has further stated that she rescued her husband, but in the meanwhile, he had suffered injury at his belly. On the following day, i.e. 23.11.2013 she got her husband admitted in the GBP Hospital, Agartala. On 30.11.2013 her husband died in the said hospital. She has sated that since her husband was being treated in the hospital, she could not file the ejahar in time. 6. On the basis of the said oral ejahar, Airport police station case No. 126/2013 under Section 325/302 of IPC was registered and taken up for investigation. On completion of the investigation, police report under Section 173(2) CrPC was filed on prima facie observation that there are materials that the appellant has committed an offence punishable under Section 302 IPC against the appellant. When the charge was explained to him, he denied the charge and claimed trial. 7. In order to substantiate the charge, the prosecution adduced as many as 14 witnesses including the informant (PW1). Having recorded the prosecution evidence, the appellant was examined under Section 313 of the CrPC and he reiterated his plea of innocence claiming that he has been falsely implicated. Thereafter, on appreciation of the evidence, the Sessions Judge returned the impugned judgment of conviction having observed that on the evidence of PWs 3, 4, 5, 7 and 8 it has been clearly revealed that the wife of the deceased (PW1) appeared on the material time of incident in the house of the accused and found him standing where her husband was lying on the ground with severe pain on his abdomen and was uttering that the accused dealt blows on his abdomen by a wooden file. 8. According to the Sessions Judge, the defence had failed to make out any rivalry between the accused and the independent witnesses to show any ulterior motive. On the basis of that, and having relied on Exception 4 to Section 300 of IPC the appellant was acquitted from the charge under Section 302 IPC, but he was convicted without framing any charge, under Section 222 CrPC, under Section 304 Part II of the IPC. 9. The Sessions Judge has submitted that when the intention of murder is inferred, the motive is not that essential. The motive is not an integral part of the crime or an ingredient of it just like mens rea or actus reus. 9. The Sessions Judge has submitted that when the intention of murder is inferred, the motive is not that essential. The motive is not an integral part of the crime or an ingredient of it just like mens rea or actus reus. Even without any motive, the crime could be committed. Absence of motive would not make an act, which is otherwise an offence, not an offence. It is determined on the aid and assessment of culpability. In this regard, the Sessions Judge has relied on a decision of this Court titled as Chitta Malakar vs. State of Tripura reported in 2014 (1) Tripura Law Report 189. 10. Mr. Lodh, learned counsel has submitted that the finding of conviction under Section 304 Part II of IPC is not supported by evidence. In other words, he has submitted that unless the cause of death is ascertained, a death cannot be inferred as homicide and unless a death is homicide, Section 304 Part II cannot be invoked for purpose of giving the alternative conviction. 11. Mr. Lodh, learned counsel has taken this Court to the definition of homicide as provided under Section 299 of the IPC. “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.” 12. In this case, according to Mr. Lodh, based on the analysis of the evidence, it cannot be said that the death is homicidal in nature. 13. To appreciate culpable homicide may be classified into three categories, viz., (i) in which death is caused by the doing of an act with the intention of causing death; (ii) when it is committed by causing death with the intention of causing such bodily injury as is likely to cause death; and (iii) when the death is caused by the act done with the knowledge that such act is likely to cause death. 14. In this regard, reference may be made to the decision of the Apex Court in Kesar Singh & Anr. vs. State of Haryana reported in 2009 3 SCC (Crl.) 1193. 15. Mr. 14. In this regard, reference may be made to the decision of the Apex Court in Kesar Singh & Anr. vs. State of Haryana reported in 2009 3 SCC (Crl.) 1193. 15. Mr. Lodh, learned counsel has further submitted that the medical report does not clearly establish that the injury from where septicemia was reported was created by the assault as allegedly caused by the appellant. He has taken this court to the post mortem examination report where the doctor has opined that the cause of death in the case in hand is septicemia and shock following injury to intestine which is possible in the above mentioned circumstances. However, blood and viscera had been preserved for analysis to rule out any associated poisoning. But from the chemical examination as carried out by the Tripura State Forensic Science Laboratory, presence of poison could not be gathered. On the basis of such opinion of the expert, the Sessions Judge came to the conclusion that the death is a homicidal one. The injury, as available, is one injury which is surgically made stitch wound to the right abdomen. Except the surgically made wound, there was no other wound as recorded in the post mortem examination report. But in the post mortem examination report, the expert who carried out the post mortem examination has recorded that there is history of physical assault by his brother by wooden plank on 22.11.2013. That apart, no other medical report has been produced by the prosecution to show whether, the internal injury can be caused from the assault by a wooden file or not or whether from the assault the organ called Jejunum was wounded or not. 16. Mr. Lodh, learned counsel has further submitted that even the incident of assault is shrouded by serious doubt inasmuch as if that was the cause it would have been immediately reported to the police but none from the relatives or for that matter, the informant reported the police within a reasonable time. That apart, the appellant is the step-brother of the deceased. 17. Thus, Mr. Lodh, learned counsel has fervently urged this Court that since it has not been proved that assault is the cause of death, the conviction under Section 304 part II IPC cannot be maintained by this Court. 18. That apart, the appellant is the step-brother of the deceased. 17. Thus, Mr. Lodh, learned counsel has fervently urged this Court that since it has not been proved that assault is the cause of death, the conviction under Section 304 part II IPC cannot be maintained by this Court. 18. The prosecution case, as projected before the trial court is that the cause of death is nothing but the assault which affected the jejunum and surgical intervention was required for that. Therefore, there is no infirmity in the finding. 19. For that purpose, let us verify what the post mortem expert Dr. Pranab Chowdhury (PW9) has stated in the trial. He has categorically stated that due to physical assault by his brother with a wooden file, the deceased was admitted in the hospital on 23.11.2013 and succumbed to the injuries on 30.11.2013. The history as mentioned is as per police information. PW9 has observed that surgically made stitch wound on the right side of the abdomen vertically placed measuring 12cm in length with seven stitches. It is situated 8 cm below the Xythoid process (upper abdomen) just lateral to mid-line. On cutting the stitches, abdomen was found stitched in layers. Peritoneum was adherent to the intestine and anterior abdominal. Ommentum was adherent to the intestine at place. There was franc pus collection over the loops of intestine or liver and other abdominal. Paritineum 425 ml of yellow pus. There was evidence of repairing of jejunum. Liver was overt with yellow colour pus and enlarged with fatty changes. He has observed that Jejunum is a part of intestine below duodenum and since surgical operation was done in jejunum, it is suggested that some injury was caused in jejunum. Surgically made drain present in the right side of abdomen. On reflection of the abdominal wall there was extra-blood within the layer of muscles, tissues within the lower middle part of the lower abdomen. It was caused by impact of some hard and blunt object and the viscera was preserved for toxicological analysis to rule out any associated poisoning. He gave his opinion that cause of death was septicemia and shock due to peritoneums (infection within the peritoneum) following injury to intestine-which was possible in the above mentioned circumstances. He has admitted in the cross examination that he has not recorded that he had consulted the bed head ticket. He gave his opinion that cause of death was septicemia and shock due to peritoneums (infection within the peritoneum) following injury to intestine-which was possible in the above mentioned circumstances. He has admitted in the cross examination that he has not recorded that he had consulted the bed head ticket. He has further re-stated that intestine was repaired by surgical operation. He has agreed to the suggestion that on sudden fall with huge amount of force on hard substance such type of injury can be caused. He has further clearly observed that only the intestine was injured but not other organs. 20. Now let us see what the other witnesses have testified in the trial. 21. PW1, Smt. Anita Gope, has stated that she heard cries of her husband and when she came out of their hut she found the appellant with a wooden file in his hand. He was threatening by saying that he would kill her husband. Then she stated that “my husband informed that Laxman delivered blows on his lower abdomen by wooden file”. Laxman also injured the right thumb by teeth bite but that was not admitted by the post mortem expert. Her husband was in severe pain. Tinku Ghosh of that locality also saw the incident. Thereafter, she brought one auto rickshaw to shift her husband to the hospital, but her husband refused to go to the hospital. When at mid-night there erupted severe pain, by a Maruti vehicle she went to the house of the father in law, (from the maternal side) and they suggested that on the morning they would shift her husband to the hospital. One operation was done on the abdomen of her husband on 25.11.2013 and ultimately her husband died on 29.11.2013. Strangely, she has admitted that after two days of hospitalization of her husband she went to the Airport police station and verbally informed the police. The police said to her that they would inquire into the matter but did nothing. After death of her husband, she lodged the ejahar orally on 30.11.2013. 22. At this point, this court should observe that in the earlier occasion, according to her, the information was lodged orally but police did not act on that. This time the police registered the case under Section 302 IPC. After death of her husband, she lodged the ejahar orally on 30.11.2013. 22. At this point, this court should observe that in the earlier occasion, according to her, the information was lodged orally but police did not act on that. This time the police registered the case under Section 302 IPC. It is hardly believable that when someone discloses a cognizable offence, the police would not take cognizance of that offence. On 30.11.2013 she has stated that she was accompanied by her brother Dilip Dey, who, of course, was not a witness to the occurrence. 23. PW1 has clearly stated that except Tinku Ghosh no one saw the occurrence and Tinku Ghosh saw the occurrence through the window of their house. 24. In the cross-examination, she has admitted that her husband used to consume alcohol and there was serious conjugal dispute over that issue. But for that reason, never Laxman has interfered in there family life. Thus, even slightest possibility of annoyance from Laxman has been discarded by PW1. 25. PW2, Sri. Dilip Dey, has stated that nothing material except accompanying PW1 to the Airport P.S. 26. PW3, Smt. Ratna Ghosh, has stated that on 22.11.2013 Laxman scolded Sujit. Sujit, the deceased, came to Laxman's house and asked Laxman not to scold. Laxman dragged him inside his living hut. By that time, PW1 came there. In the meanwhile, Laxman had delivered a blow on the lower abdomen of Sujit by a wooden plank. But immediately he was recovered. 27. PW4, Sri. Surendra Biswas, has stated that he found Sujit lying on the courtyard of Laxman with injury on abdomen but neither PWs1 or 3 has stated that they found Sujit (the deceased) was lying in the courtyard of Laxman. 28. PW5, Sri. Sitaram Ghosh, has stated that Laxman picked up quarrel with Sujit. He and his wife PW4, noticed everything from the courtyard and they approached to that area, and asked PW1 to come. Sujit grabbed Laxman inside his living hut and delivered a blow on Sujit by a wooden file. He has not stated anything beyond that. 29. The most important witness is PW6, Smt. Tinku Ghosh. She has stated as follows: “On the following morning Anita informed her that on the previous night Laxman assaulted Sjit and Sujit was admitted in the hospital. After about a week Sujit died in the hospital. He has not stated anything beyond that. 29. The most important witness is PW6, Smt. Tinku Ghosh. She has stated as follows: “On the following morning Anita informed her that on the previous night Laxman assaulted Sjit and Sujit was admitted in the hospital. After about a week Sujit died in the hospital. I found his dead body when it was brought to his home.” 30. She is also a witness of the seizure of the wooden file (Exhibit MO1). She has stated nothing, on how the actual transaction of the offence was seen by her as claimed by PW1. 31. PW7, Sri. Goutam Ghosh, was requested by PW1 to carry Sujit and he carried Sujit to Narayanpur in a relatives house. At that time, according to him, Anita (PW1) and Sujit (the deceased) both informed him that Laxman assaulted him by a wooden file. 32. PW8, Smt. Dulu Rani Ghosh, stated that on the day of occurrence nearby people gathered and heard Sujit telling that Laxman delivered blows on his abdomen. 33. PW9, testimony of Dr. Pranab Choudhury, has already been discussed. 34. PW10, Sri Suman Kr. Chakraborty, is a forensic expert and he has stated that no poison was found in the viscera. He identified the report (Exhibit 4). 35. PW11, Sri. Kamalendu Bhowmik, is the recording officer. He has simply stated how he recorded the ejahar and entrusted the case for investigation. 36. PW12, Sri. Nanda Dulal Das, was entrusted with the investigation of the case and he has narrated in the trial how he carried out the investigation and collected the pos mortem report and later he filed the charge sheet having found a prima facie case. 37. In the cross-examination, he has categorically stated that Goutam Ghosh did not state to him that Anita and Sujit informed that Laxman (the appellant) assaulted Sujit by the wooden file. Similarly, he has stated that Dulu Rani Ghosh (PW 8) did not state to him that LAxman assaulted Sujit by a wooden file. Tinku Ghosh (PW 6) did not state to him that Anita informed that Laxman delivered blow on Sujit by a wooden file. 38. Be that as it may, all these statements are generated as hearsay and the generator is Anita (PW1) who has testified in the trial. 39. Tinku Ghosh (PW 6) did not state to him that Anita informed that Laxman delivered blow on Sujit by a wooden file. 38. Be that as it may, all these statements are generated as hearsay and the generator is Anita (PW1) who has testified in the trial. 39. PW13, Woman-ASI Hemalata Debbarma was posted at the GBP Hospital and she carried out the inquest and prepared the report. She has stated that she found "no sign of injury" on the person of the deceased. 40. PW14, Dr. Abhijit Acharjee, is one of the important witnesses. He has narrated the entire transaction of operation in such a manner, that it is really difficult to rely on such testimony. He has stated as follows: “On 25.11.2013 I performed duty at operation theater of M.S. Unit-II of Agartala GBP Hospital. On that day, Dr. Damodar Chatterjee, as a surgeon and Dr. D Chowdhury, Dr. A Das both as assistant conducted operation over patient namely, Sujit Gope. I was also present in the O.T. and after operation was finished Dr. Damodar Chatterjee gave dictation to write the operation record and as per his dictation I wrote the operation record and thereafter, I put my signatures on both pages of the record. This is the operation record and my signatures in it and it is marked as Exbt.10 as a whole.” 41. In the cross examination, he has categorically stated that he is unable to give reply to any question on the content of the operation report. 42. From the operation report (Exhibit-10 Pages 40-45 of the paper book) nothing can be found about the pre-operational situation or status. These are the technical records. But, the post operational advise is available. The operation was conducted for perforation in jejunum about 10 cm from fixed part. But the reason is absent in these papers. Whether there was any cause for that perforation has been omitted to be noted. 43. Having analysed the evidence, this Court is of the view that the finding of the conviction under Section 304 Part II IPC requires interference and accordingly it is interfered with and set aside, inasmuch as, on the basis of the medical opinion whether the death was homicidal or not cannot be ascertained. As a result, the appellant is acquitted from the charge under Section 304 Part II of the IPC. 44. As a result, the appellant is acquitted from the charge under Section 304 Part II of the IPC. 44. But from the evidence, this Court is convinced that the appellant assaulted the deceased by a wooden shaft. The statement made by the deceased to her wife (PW1) cannot be dis-believed, even though the delay had dissuaded this Court in this regard, but the reason for such delay is quite understandable. As such, the voluntary hurt caused by the appellant is punishable under Section 324 IPC. For that purpose, the formal charge is not required to be framed inasmuch as, the assault being in the use of the culpable act, the offence under Section 324 IPC falls within the meaning of offence in terms of Section 222 CrPC. 45. Having inferred thus, he appellant is sentenced to suffer imprisonment to the extent of three months with a fine of Rs.1,000/-and in default of payment of fine, the appellant shall suffer SI for 15 days. 46. Needless to say, the period of detention during investigation, trial or in the aftermath shall be set off from the substantive sentence of imprisonment. 47. In the result, the appeal stands partly allowed. Send down the LCRs forthwith.