JUDGMENT : M. R. Pathak, J. We have heard Mr. Z.Alam, learned counsel appearing for the appellant and Mr. H. Sarma, learned Addl. Public Prosecutor, Assam appearing for the respondent No.1. Also heard Mr. S. C. Biswas, learned counsel appearing for the respondent Nos. 2 to 7, acquitted accused persons. 2. This appeal is against acquittal and lesser sentence of the accused persons passed by the learned Sessions Judge, Karimganj on 23-05-2014 in Session Case No. 90/2011, having filed by the appellant, father of the informant of the case that has arisen out of Karimganj PS Case No. 547/2008. By the impugned judgment and order, the respondent Nos. 2 to 7, the accused persons of the case, were convicted under Section 325/34 IPC and sentenced to rigorous imprisonment for a period of six months with a fine of Rs.3,000/-each and in default, to undergo further rigorous imprisonment for a period of one month. The accused persons were also convicted and sentenced to undergo simple imprisonment for a period of two months with fine of Rs. 1,000/-each, u/s 323/34 IPC, in default to further undergo simple imprisonment for a period of 15 days, with the observation that all the sentences will run concurrently. 3. The appellant herein, is aggrieved, as the learned trial judge did not convict and sentence the accused persons i.e. the respondent Nos. 2 to 7 under section 304 Pt. II but also gave a lesser punishment. The learned trial judge should have considered the injury sustained by the son of the appellant, which were grave in nature and the accused persons should have been convicted u/s 304 Part-II IPC and should have been given more severe punishment. 4. Brief facts of the case are that on the night of 16-10-2010 during the Nabami day of Durga Puja, the deceased along with his elder brother and friends entered the restaurant, namely, Labuchi restaurant at new market Masjid Road and ordered for some platters (chicken biryani) But as there was a delay to provide the same, they wanted to leave and on the request of the manager of the restaurant, they accepted to have two plates of the same. While eating, in one of the plate, they found a hair and while leaving the restaurant they refused to pay for the said plate, which was objected by the manager and then altercation took place between the deceased, his elder brother and friends along with the manager and the employees of the said restaurant and both the parties assaulted each other. During such assault, the brother of the PW 4, the victim, sustained head injuries and was taken to the Karimganj Civil Hospital, where he died next day in the morning hours. The doctor of the hospital then directed the elder brother of the deceased first to report to the police about the incident and accordingly, the present appellant, father of the deceased, lodged the FIR of the case pertaining to Karimganj PS Case No. 547/2010. The I.O. of the case accordingly investigated the matter. 5. To prove the case the prosecution examined 11 prosecution witnesses but the accused persons in the defence did not examine any witness. However, they cross-examined the prosecution witnesses and after closure of the evidence of the prosecution witnesses, their statements were recorded by the learned trial judge under Section 313 CrPC, wherein they denied the acquisition made against them the prosecution. 6. While going through the evidence of the prosecution witnesses, we have noticed that the PW.4, the brother of the deceased, in his examination-in-chief categorically stated that it was the accused Dheeraj with a thick lathi struck on the head of his younger brother, the deceased. The autopsy doctor PW 8 in his evidence deposed that the death of the deceased was due to severe internal haemorrhage leading to shock and damage to brain matter. Said PW.8 in his evidence also adduced that there are deep bruise in left turn lateral aspect of size 3’’ x 3’’ and the injuries were depressed fracture in the right parietal area of the scalp with injury to the brain matter. 7. It is seen that the said accused Dheeraj, who allegedly inflicted the blow on the head of the deceased could not be identified during the test identification parade by the prosecution witnesses. It is also seen from the evidence of the PW.4, the brother of the deceased that the fight that started inside the restaurant was for about 20 minutes. It is seen that the said accused Dheeraj, who allegedly inflicted the blow on the head of the deceased could not be identified during the test identification parade by the prosecution witnesses. It is also seen from the evidence of the PW.4, the brother of the deceased that the fight that started inside the restaurant was for about 20 minutes. Further, during the cross examination by the defence, said PW.4 also stated that prior to the TIP, once he came to the office of the PSI and identified the accused on that day itself, which also goes to show about the correctness of the said TIP. 8. PW.5 in his examination-in-chief also deposed that it is the accused Dheeraj, who allegedly assaulted the accused on his head with a lathi like object. In his cross examination he stated that before holding the TIP police took them to the PSI office, where three of the prosecution witnesses sat there for a long time. PW.6 in his examination-in-chief deposed that it was the accused Dheeraj, who brought an object like lathi and gave blow on the head of Biplov, the deceased. However, PW.6 in his cross-examination by the defence stated that the fight continued for about half an hour inside the restaurant. 9. Though the victim (deceased) sustained five injuries, out of which, four injuries were on his head and the prosecution witnesses in their evidence clearly stated that it was Dheeraj who gave the blow on the head of the deceased; however, the prosecution witnesses failed to identify said Dheeraj during the TIP, though identified him in the dock during their cross-examination. 10. Learned Trial Judge came to the finding from the evidence adduced by the prosecution that there was a marpit (commotion/fight) inside the restaurant and also came to the finding that the accused persons did not have any specific intention to inflict hurt to any particular person and it was because of sudden provocation, for non-payment of money for the food supplied by the restaurant and due to the heated arguments between both the sides for such non payment of bill, a commotion took place between them inside the restaurant itself, where all of them took part. 11. The prosecution witnesses did not state about using any deadly weapon like gun, bomb, rifle, sword etc. 11. The prosecution witnesses did not state about using any deadly weapon like gun, bomb, rifle, sword etc. by the accused persons and stated that only bamboo was used during the said sudden fight and it was the accused Dheeraj, who allegedly gave the blow on the head of the deceased by a lathi (stick) like object. 12. The Trial Court from the evidence adduced by the prosecution came to the clear finding that the nature of weapon used during the said fight goes to show that the assailants might not have any knowledge that such assault would be fatal resulting to death of the deceased. 13. The autopsy doctor (PW 8) clearly stated that the deceased/victim could have been saved in case of his timely treatment and he could have survived. It is not the case of the prosecution that injuries sustained by the deceased on his person were sufficient in the ordinary course of nature to cause death and the autopsy doctor could place that there was possibility of the instant death of the deceased. 14. For such availability of the evidence, we are of the opinion that the learned Trial Court has rightly held that the accused persons of the case, i.e., respondent Nos. 2 to 7 herein cannot be held to have committed the offence under Section 304 Part-II and rightly held they have committed the offence under Section 325 IPC. Further, the Trial Court, from the evidence adduced by the prosecution witnesses, which we have gone through, also found that the accused persons of the case have committed the offence under Section 323/34 IPC, which have been proved beyond all reasonable doubt, and accordingly punished them under Sections 323/325/34 IPC and sentenced them as noted above. 15. Further, the Trial Court, from the evidence adduced by the prosecution witnesses, which we have gone through, also found that the accused persons of the case have committed the offence under Section 323/34 IPC, which have been proved beyond all reasonable doubt, and accordingly punished them under Sections 323/325/34 IPC and sentenced them as noted above. 15. During the course of argument, when the appellant as well as the prosecution were asked when the prosecution witnesses failed to identify the main assailant, Dheeraj during the TIP, whether the learned Trial Court committed any error regarding convicting the accused persons under Sections 323/325/34 IPC and sentenced them accordingly, they admitted the fact that the main assailant/accused who struck on the head to the deceased could not be identified by the prosecution witnesses during the TIP and this itself weakened the submission of the appellant as well as the prosecution for convicting the accused persons under Sections 304 Part-II as well as for severe punishment under Sections 323/325/34 IPC. 16. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. In the case of Ramesh Harijan Vs. State of U.P., reported in (2012) 5 SCC 777 , the Hon’ble Apex Court have held that - “20. … The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.” 17. From the perusal of the evidence on record including the evidence of the autopsy doctor (PW.8) and the Investigating Officer of the case (PW.11) as well as the Exhibits including the Post Mortem Report of the deceased, we do not find any such material irregularity or perversity to interfere with the impugned judgment and order of conviction and sentence dated 23-05-2014 passed by the learned Sessions Judge, Karimganj in Sessions Case No.90/2011. 18. Mr. Biswas, learned counsel appearing for the accused persons/ respondent Nos. 2 to 7, has submitted that pursuant to the impugned judgment dated 23-05-2014, the respondent Nos. 18. Mr. Biswas, learned counsel appearing for the accused persons/ respondent Nos. 2 to 7, has submitted that pursuant to the impugned judgment dated 23-05-2014, the respondent Nos. 2 to 7 have already served out the sentences. 19. For the reasons stated above, there being no merit in this appeal, we upheld the judgment and order of conviction and sentence dated 23-05-2011 passed by the learned Sessions Judge, Karimganj in Sessions Case No.90/2011 and dismiss this appeal preferred by the appellant, being devoid of merit. 20. Registry shall return the LCR along with a copy of this judgment.