JUDGMENT : N. KOTISWAR SINGH, J. Heard Mr. A. Baruah, learned counsel for the appellant. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State of Assam as well as Mr. N. Ahmed, learned counsel appearing for the respondent Nos. 1 and 2. 2. The present appeal has been preferred by Dipali Devi Deka, who is the wife of the deceased-Manoj Deka, against the judgment dated 17.10.2015 passed in Sessions Case No. 62/2013 by the learned Sessions Judge, Morigaon being aggrieved by the conviction of the accused No. 2 only under section 352, IPC and not under section 302, IPC, as according to the appellant, the accused-respondent No. 2 had caused the death of her husband by causing grievous injury to him. 3. As per the records, an FIR was lodged by the informant Shri Lachit Chandra Medhi before the Morigaon Police Station on 2.7.2008 stating, inter alia, that in the evening of the previous day, i.e., 1.7.2008 at about 7.30 p.m., while the deceased-Manoj Deka, the District Secretary of the Communist Party of India (CPI) of Morigaon District, after shopping in the market was returning home by bicycle, he was stopped in front of an optical shop by the Officer in-charge, Morigaon Police Station (respondent No. 1) and the PSO (respondent No. 2) who confronted the deceased to disclose the contents of the bag and directed him to open it, who then informed them that it contained fish and some vegetables. However, the respondent No. 2 opened the bag and threw it away and trampled the deceased. Thereupon the deceased lost his consciousness and was rushed to Morigaon Civil Hospital and then subsequently referred to GNRC hospital and was admitted in the ICU. 4. Based on the aforesaid FIR, a case being Morigaon P.S. Case No. 180/2008 under section 341/427/307/34 of the IPC was registered. 5. The aforesaid Manoj Deka who was admitted to ICU died during the investigation on 4.7.2008 and accordingly, section 302, IPC was added in the FIR. Upon completion of investigation, the police submitted Final Report stating that no case was made out. However, the Magistrate did not accept the same considering the materials on record, and referred to the Sessions Court for taking cognizance of the offence under section 302, IPC. The learned Sessions Court in view of the materials took cognizance of the offence under section 302 and respondent Nos. However, the Magistrate did not accept the same considering the materials on record, and referred to the Sessions Court for taking cognizance of the offence under section 302, IPC. The learned Sessions Court in view of the materials took cognizance of the offence under section 302 and respondent Nos. 1 and 2 were charged for committing offence punishable under section 302, IPC. 6. In course of the trial, the prosecution examined as many as 12 witnesses including the Doctor who performed the post mortem on the deceased. The learned trial court after hearing the parties and examining the records held that the prosecution failed to prove the allegation under section 302, IPC against both the accused. However, the trial court held that the prosecution has been successful in bringing home the offence punishable under section 352, IPC against the accused-Rofikul Islam (respondent No. 2 herein), however, acquitted the accused No. 1 (respondent No. 1 herein). Considering the circumstances under which the death occurred, the learned trial court let him off after admonishing him by warning him not to do such act in future in discharging his official duty, which can cause harm to the general public. 7. Thus, both the accused were acquitted of the charge under section 302, IPC and only the accused No. 2-respondent No. 2 was convicted only under section 352, IPC and was let off after admonishing him. 8. As we proceed to examine the appeal, it may be appropriate to refer briefly to the evidence on record. 9. PW-1, Sri Nirmal Paul was a shopkeeper, who was an eye witness. He stated that the incident occurred about four/five years ago in the evening hour. On the fateful day he saw two constables checking the bags of persons who were gathered in front of a street vendor (chanawala). While the said constables wanted to check the bag belonging to the deceased-Manoj Deka, he refused to co-operate and an altercation took place between them. In the ensuing scuffle, the cycle of the deceased fell on the ground. Thereafter, the deceased shouted that the local police were harassing the public. After some time he saw the deceased lying on the ground and was brought up near his shop and somebody poured water on him. Then one traffic-in-charge arrived there and sent the deceased to Civil Hospital in a vehicle. Thereafter, the deceased shouted that the local police were harassing the public. After some time he saw the deceased lying on the ground and was brought up near his shop and somebody poured water on him. Then one traffic-in-charge arrived there and sent the deceased to Civil Hospital in a vehicle. He also stated that his statement was recorded under section 164, CrPC before the Magistrate and he proved the said statement exhibited as Exhibit 1 with his signatures as Exhibit 1(1) and Exhibit 2(2). PW-1 was declared a hostile witness and accordingly was cross-examined by the prosecution. During the cross-examination, he denied that he stated before the police that the constables told Manoj Deka, the deceased that he would be dragged to the police station and they kicked his cycle. He also denied that he saw the cycle was lying on the ground and pushed the deceased-Manoj Deka forcibly, as a result of which Manoj Deka fell on the ground and that he saw the incident from his shop. In the cross-examination by the defence counsel, PW-1 had stated that he could not recognize the constables who checked the bag of Manoj Deka on that day. He, however, stated that he knew the accused-person, as he was in Morigaon Police Station. He stated that he did not see the constable push Manoj Deka forcibly. PW-1 was also cross-examined by the defence counsel of accused-respondent No. 1, Kamal Ch. Borah, who stated that he knew the accused-Kamal Ch. Borah but he did not see him at the place of occurrence. 10. PW-2 was one Motibur Rahman, who owned a fruit shop in the comer of the road in the market. He stated that while he was in his shop at about 7 p.m. police were checking bags of the persons by the side of his shop. Manoj Deka came from Maya Bazar side and arrived near his shop and then the accused tried to check his bag. On being asked Manoj Deka replied to the accused that he had purchased fish which was inside his bag. But the accused insisted on showing the bag which the deceased refused. Thereafter, an altercation ensued between the deceased and the police. Then the accused took the bag from Manoj Deka and threw the articles from the bag on the road. On being asked Manoj Deka replied to the accused that he had purchased fish which was inside his bag. But the accused insisted on showing the bag which the deceased refused. Thereafter, an altercation ensued between the deceased and the police. Then the accused took the bag from Manoj Deka and threw the articles from the bag on the road. After checking the articles, he kept the articles in the bag and returned to Manoj Deka. Thereafter, Manoj Deka started shouting that the police were harassing him. The accused held the deceased-Manoj Deka by keeping his hand on the shoulder to take him to the Police Station and pushed him back forcibly because of which the deceased-Manoj Deka hit on a light post on his backside and he sat on the ground. After few minutes the deceased-Manoj Deka stood up and he told that he was feeling uneasy. Thereafter, he was taken to Haraganga Spectacle shop and they poured water on his head. Then the Traffic incharge came with an Indica vehicle and took him to the hospital. Later on he heard that Manoj Deka died. His statement was also recorded under section 164, CrPC before the Magistrate which he proved when it was exhibited before the court. In the cross-examination, FW-2 stated that the accused did not put any force while he kept his hand on the shoulder of Manoj Deka. He also stated that Manoj Deka was able to talk when he stood up after hitting the light post. He also stated that Manoj Deka was a leader of CPI in Morigaon District. PW-2 stated that he was a leader of a political party so, for his checking, he made a hue and cry. He also stated that he knew the accused checked the bags of persons in compliance of his official order and prior to the occurrence, there was bomb blasts at Morigaon and Nagaon. PW-2 was also examined by the counsel for the accused-Kamal Ch. Borah, who stated that he did not know the accused-Kamal Ch. Borah and he did not see him at the place of occurrence. 11. PW-3 was one Dr. Putul Mahanta, Assistant Professor, Department of Forensic Medicine, Gauhati Medical College and Hospital, Guwahati, who performed the post mortem examination of the dead body of the deceased-Manoj Deka. He stated before the trial court about the injuries received by the deceased. Borah and he did not see him at the place of occurrence. 11. PW-3 was one Dr. Putul Mahanta, Assistant Professor, Department of Forensic Medicine, Gauhati Medical College and Hospital, Guwahati, who performed the post mortem examination of the dead body of the deceased-Manoj Deka. He stated before the trial court about the injuries received by the deceased. Relevant portions of the post mortem report are reproduced hereinbelow: “I. External appearance 1. Condition of subject stout emaciated, decomposed, etc. Male dead body of average built of dark brown complexion covered by an white markin. Rigor mortis present in upper limb and upper part of the body. Mouth and eyes closed. Anus and penis healthy. One black cotton thread found at the waist. Rigor Mortis not fully developed in lower part of the body. Body warm on touch. (2) Wounds, Position. Character: (3) Bruise Position size and nature: No external injury found. (4) Mark of ligature on neck dissection, etc.: Healthy. II. Cranium and spinal canal 1. Scalp, skull, vertebrae: All healthy. 2. Membrane: Congested. Intra-cerebral (at places)and Intra-ventricular haemorrhage present. 3. Brain and spinal cord: Congested brain. Spinal cord— Not examined. Note : The spinal canal need not be examined unless any indications of disease or injury exist. III. Thorax 1. Walis ribs and cartilages : Healthy all. 2. Pleurae: Congested. 3. Laryax and trach ere: Mucosa congested. 4. Right lung 5. Left lung-: All congested. 6. Pericar (dium) 7. Heart: Heart is full. Its weight-300 gms. Coronaries are prominent and its wall is thickened. 8. Vessels: All healthy. IV. Abdomen 1. Walls: Healthy all. 2. Peritonoum: Congested. 3. Mouth, pharyanx, oesophagus: Healthy. 4. Stomach and its contents: Contains 200 gms of fluidy materials mixed with medicine like substances. (5) Small intestine and its contents : Contains digested food materials. (6) Large intestine and its contents: Contains faecal and gases. (7) Liver : Both healthy. (8) Spleen : Both healthy. (9) Kidneys : Both congested. Petechial haemorrhage present over renel capsule. (Rt. Side) (10) Bladder : Empty & healthy. (11) Organs of generation extema: All healthy, and internal Prostate found healthy. V. Muscles, bones and joints 1. Injury: NIL. 2. Disease or deformity : As described. 3. Fracture: NIL. 4. Dislocation: NIL. (8) Spleen : Both healthy. (9) Kidneys : Both congested. Petechial haemorrhage present over renel capsule. (Rt. Side) (10) Bladder : Empty & healthy. (11) Organs of generation extema: All healthy, and internal Prostate found healthy. V. Muscles, bones and joints 1. Injury: NIL. 2. Disease or deformity : As described. 3. Fracture: NIL. 4. Dislocation: NIL. …………………… …………………… ASSISTANT SURGEON OPINION OF AS TO CAUSE OF DEATH SUB-ASSISTANT SURGEON Cause of death is kept pending till receipt of viscera analysis report from State Forensic Science Laboratory, Kahilipara. Approx time since death (4-6) hrs.” In the cross-examination, he stated that he mentioned in his post mo rtem report that the cause of death was pending as visceras were sent for chemical analysis to the State Forensic Laboratory but the said report had not yet been received by the Department. As per the procedure the chemical analysis report has to be submitted before the Department before giving the final opinion. To the question of the trial court on his giving the finding that there was intra cerebral and intra-ventricular haemorrhage in absence of injury, whether these could be the cause of death, he stated that haemorrhage which was referred was the cause of death due to sudden shock and in the form of Coma. 12. PW-4 was one Smt. Dipali Devi Deka, the appellant herein, who is the wife of the deceased but was not an eye witness. She was informed about the incident by her neighbours that her husband was taken to Morigaon Civil Hospital where she immediately rushed and found her husband’, lying in an unconscious condition. Thereafter, her husband was referred to Gauhati Medical College and Hospital, Guwahati and there she was informed by the people gathered that accused-Rafikul Islam (respondent No. 2) and O.C. Kamal Ch. Borah (respondent No. 1) had assaulted her husband at Morigaon Town Police Point. 13. PW-5 was one Rabindra Kr. Nath, who was the Secretary of Nikhil, Bharat Kissan Sabha, Morigaon District who stated that the deceased was the Secretary of the office of the CPI, Morigaon District. Though he deposed about the deceased being pushed by the police which resulted in hitting light post in which he sustained injuries, he was hot an eye witness but was informed about the incident by others and, hence, his evidence as regards the incident would be hearsay evidence. 14. PW-6, Sri Lachit Ch. Though he deposed about the deceased being pushed by the police which resulted in hitting light post in which he sustained injuries, he was hot an eye witness but was informed about the incident by others and, hence, his evidence as regards the incident would be hearsay evidence. 14. PW-6, Sri Lachit Ch. Medhi, was also not an eye witness who also heard about the incident from others and as such his evidence also; may not be admissible as regards the incident being hearsay evidence. 15. PW-7, Tankeswar Nath, a shopkeeper, was an eye witness who was having a shop near the No. 1 Police Point and Haraganga Optical shop. He deposed that at the relevant time, he was in his shop and the deceased-Manoj Deka came and stopped near his shop to purchase snacks. Then! the accused Islam came and asked the deceased-Manoj Deka what was inside his bag which was in his bicycle, he then replied that he had purchased fish. Accused Islam then pulled the bag from Manoj Deka and he did not see anything as other customers were present in his shop. After some time, he saw Manoj Deka lying near the light post. Then some persons lifted Manoj Deka and took him to a nearby shop and poured water on his head. Police examined him and recorded his statement where he stated that the accused-Rafikul Islam forcibly snatched the bag from Manoj Deka and brought out fish from the bag and laid the fishes on the g round. At that time, the deceased requested him not to lay the fishes on the ground. Then the accused Islam forcibly pushed back Manoj Deka because of which he dashed with the light post and slowly lay down there. Thereafter, some persons took him to Haraganga Optical Shop. In the cross-examination, PW-7 stated that the police persons were checking the belongings of different persons in the market as because there was a bomb blast in the Morigaon market in the previous day. At the time of checking, the persons who came to the market did not raise any objection. Initially the accused-Rafikul Islam asked Manoj Deka politely. But he resisted. So, an altercation took place. He had seen snatching of bag but he did not notice pushing of Manoj Deka. 16. PW-8, Fcizlul Hoque, was the Traffic in-charge at Morigaon Police Station. At the time of checking, the persons who came to the market did not raise any objection. Initially the accused-Rafikul Islam asked Manoj Deka politely. But he resisted. So, an altercation took place. He had seen snatching of bag but he did not notice pushing of Manoj Deka. 16. PW-8, Fcizlul Hoque, was the Traffic in-charge at Morigaon Police Station. He stated that on that day, at about 6/6.30 p.m., he was doing duty at No. 1 Traffic point of Morigaon town. He saw 20/25 persons gathered at the opposite of the police point and in front of Haraganga Optical shop. He went there and found one person was sitting inside the optical shop. On being asked, the person could not reply. He thought that he was ailing and on assessment, he found that he was not well. He then arranged to take the person to Civil Hospital in an Indica car. Later on, he came to know from the persons gathered there that the then O/C Kamal Bora Ccirried out checking of the person and then an altercation took place, thereafter, the person became ill. In the cross-examination, he stated that he did not see any police personnel and he did not state before the I.O. that he had heard from the person about the occurrence that the then O/C Kamal Bora carried out checking and then an altercation took place with the person. 17. PW-9, Biren Saikia, was the police constable attached to Officer Incharge (O/C) of Morigaon Police Station as PSO. He stated that on that day there was a routine checking going on by the Morigaon Police near No. 1 Police Pointt. At that time, another PSO, Rafikul Islam was with the O/C. PW-9 was asked to be present in the Northern side, Rakiqul Islam was asked to remain in the Western side and the O/C himself remained in the Eastern side as part of the duty. However, he stated that he did not know about the occurrence. On being declared a hostile witness, he was cross-examined by the prosecution and he denied having stated before the I.O. that he came to know from the public that Rafikul checked the bag of Manoj Deka kept in his bicycle at No. 1 Police Point and pushed back Manoj Deka and thereafter, Manoj Deka fainted. On being declared a hostile witness, he was cross-examined by the prosecution and he denied having stated before the I.O. that he came to know from the public that Rafikul checked the bag of Manoj Deka kept in his bicycle at No. 1 Police Point and pushed back Manoj Deka and thereafter, Manoj Deka fainted. On being cross-examined by the counsel for the State, he stated that at the time of checking of bag of Manoj Deka by Rafikul, the O/C was not present there. 18. PW-10, Upendra Nath Goswami, was the Investigating Officer of the case. He took over the investigation of the case after the earlier investigating officer was transferred who submitted the Final Report. According to the post mortem report, the death was due to coma resulting from intra-cranial haemorrhage and described a natural cause. 19. PW-11, Dhiraj Mohan Talukdar, was posted as O/C of Morigaon Police Station. He took up the investigation of the case. He deposed that he had examined Nirmal Paul, PW-1 who told him that the Constable told Manoj Deka to drag him to the Police Station and kicked his bicycle and the cycle was lying on the ground and that he also pushed him forcibly as a result of which the deceased fell on the ground and that he had seen the incident from his shop. 20. PW-12 was one Kamal Ch. Das, who was also one of the Investigators who took over the investigation after the earlier I.O. was transferred. 21. In the examination of the accused under section 313, CrPC by the court, the accused-Rafikul Islam denied the allegations made against him that he had murdered by intentionally causing death of Manoj Deka. He also denied the evidence of PWs-1, 2 and 7. As regards the medical evidence, he stated that he had no idea. He also denied the evidence of PWs-4, 5 and 6 as false. However, as regards the evidence of PW-8, S.I. Fazlul Hoque that he had found a crowd gathered in front; of Haraganga Optical shop and found the deceased there and that he held arranged for taking the deceased to the Civil Hospital in a car, the accused admitted the same to be correct. Similarly, he also did not dispute the evidence of PWs-9 and 10. Similarly, he also did not dispute the evidence of PWs-9 and 10. The accused-Rafikul Islam (respondent No. 2) on being asked by the court stated that he checked the bag of the deceased-Manoj Deka but he never pushed him or assaulted him. He also stated that on the previous day, there was bomb blast at different places and he was checking the bag but did not find anything. 22. The other accused-Kamal Chandra Borah (respondent No. 1) also denied the allegation that he had committed the murder of Manoj Deka. He also denied the evidences of PWs-1, 2, 4, 5, 6 and 7. However, he admitted to the evidence of PW-9 Biren Saikia who was attached to the O/C of Morigaon Police Station as PSO who accompanied him to the place of occurrence and remained posted there for certain period. He claimed innocence and stated that he was not present at the place of occurrence at the relevant time and he was checking about 200 m away from the place of occurrence. 23. Learned trial court on examining the evidences noted that though PW-1, Nirmal Paul, a shopkeeper in the market witnessed the incident, he failed to recognize the police personnel who was present at that time. As regards PW-2, the trial court on examining his evidence came to the conclusion that PW-2 had implicated the accused Islam by his evidence about the checking of the bag of Manoj Deka and on his refusal to open his bag an altercation took place, and Islam had scattered the articles of the bag on the road and again kept the articles in the bag and returned to the deceased, and about shouting by Manoj Deka that the police personnel were harassing him and pushing of Manoj Deka by the PW-2 because of which the deceased hit the electric light post on his back. 24. The trial court in order to examine the issue as to whether the deceased got injury on his head by hitting the light post due to forcible pushing by the accused-Rafikul, referred to the evidence of PW-3 who conducted the post mortem on the dead body of the deceased. 24. The trial court in order to examine the issue as to whether the deceased got injury on his head by hitting the light post due to forcible pushing by the accused-Rafikul, referred to the evidence of PW-3 who conducted the post mortem on the dead body of the deceased. The trial court, considering the evidence of PW-3 that the final opinion about the cause of death had been kept pending till receipt of viscera analysis report from the State Forensic Laboratory as mentioned in the post mortem report, took the view that the doctor failed to ascertain the actual cause of death of the deceased. 25. According to the trial court even if such haemorrhage could be caused as a result of hitting of the victim on the light post, if a person hit the light post, he ought to have sustained external injury but no such external mark of injury was found by the doctor at the time of post mortem examination of the dead body. Thus, in view of the opinion of the PW-3 that the actual cause of death of the deceased could not be ascertained, the trial court held that the prosecution failed to prove the cause of death of deceased in this case. The trial court observed that no scientific expert was examined, neither any report exhibited in the case. According to the trial court though the doctor found intra-ventricular haemorrhage in the brain, there was no explanation how it happened and how the injury occurred as there was no external injury. Learned trial court also noted that though the deceased was initially treated at Morigaon Civil Hospital, no doctor from the said hospital was examined who could have been the most material witness. 26. The trial court, however, correctly discarded the evidence of PW-4, the wife of the deceased, PW-5, Secretary of Nikhil Bharat Kissan Sabha, PW-6, Lachit Medhi, Member of Zilla Parishad who was the informant of the case as they were not eye witnesses. As regards PWs-2 and 7, who were the eye witnesses, the trial court observed that their evidence corroborated as regards the incident on the fateful day that when the deceased arrived at the place of occurrence by taking his bag in the bicycle, the accused-Rafikul Islam demanded to search the bag which was hung in the bicycle. As regards PWs-2 and 7, who were the eye witnesses, the trial court observed that their evidence corroborated as regards the incident on the fateful day that when the deceased arrived at the place of occurrence by taking his bag in the bicycle, the accused-Rafikul Islam demanded to search the bag which was hung in the bicycle. When the deceased told him that he had purchased fish, which was in the bag, the accused took the bag from the bicycle. Thereafter, a scuffle took place between them. It appears that the accused-Rafikul Islam used criminal force and due to that scuffle, the victim hit the light post and sat down and thereafter, some people lifted him and took him to the nearby shop and poured water on his head. There, the victim told that he was feeling uneasy and thereafter, he was taken to Morigaon Civil Hospital. 27. As regards PWs 8 and 9, the trial court also noted that they were at different places at the relevant time, though the evidence of PW-8 corroborated about the incident when there was a gathering around the deceased till he arranged to take the deceased to the Civil Hospital. 28. The learned trial court upon analysis of the evidence held that none of the witnesses implicated the accused-Kamal Ch. Borah with the incident. Only PWs-1, 2 and 7 categorically stated that Rafikul Islam searched the victim whereupon the victim raised objection. Then the accused-Rafikul Islam pushed back the bicycle and an altercation ensued and the victim hit the light post. 29. The other witnesses, PWs-10, 11 and 12 were not eye witnesses. They were not present at the place of occurrence at the time of occurrence. Hence, their evidences were not taken into consideration. Accordingly, after analysis of the evidence, the learned trial court came to the following conclusion as recorded in para 18 of the judgment dated 17.10.2015 which reads as follows,— “Thus, upon careful and attentive analysis of the evidence on record it is found that none of the PWs other than the accused was present at the time when search was conducted over the bag of the victim. However, it established from the evidence on record that accused-Rofikul Islam demand searched of the bag of the victim, but the victim was reluctant, but the accused Islam pulled the bag forcibly from the bicycle of the victim and then a scuffle took place between them and accused Islam pushed back the victim and the victim hit in the light post. However, the doctor found no external injury over the dead body of the deceased. Further, the doctor stated that the deceased suffered from Intra-cerebral and intra-ventricular haemorrhage and that may be the cause of death due to sudden shock and in the form of coma. No materials on record have able to establish that the deceased was earlier suffering from any kind of disease. Thus, I have found from the evidence on record that the accused-Rajikul Islam used criminal force to the victim and for that the incident took place. However, the prosecution has failed to prove the allegation under section 302, IPC against both the accused. But the prosecution has succeed to bring home the offence punishable under section 352, IPC against the accused Islam and accordingly, the accused Islam is found guilty under said section of law and is convicted.” 30. Thereafter, having convicted the respondent No. 2 under section 352, IPC, the learned trial court went to consider the quantum of punishment and took the view that whatever was done by the respondent No. 2 was while discharging the official duty. Learned trial court noted that the respondent No. 2 emptied the bag by throwing the contents of the bag of the victim and thereafter, there was an altercation with the deceased and he pushed the deceased back. Learned trial court also observed that the respondent No. 2 was in fault initially by throwing the contents of the bag which was carried by the victim and, hence, it amounted to use of criminal force. Thus, he exceeded the official duty and was guilty of using criminal force. However, the learned trial court proceeded to hold that the fact remains that the accused is a police official and on that particular day, he was discharging his duty in the prevailing situation where bomb blasts had taken place throughout the State and as such, the police were under high alert and were watching for mischief mongers and police got over-active because of which the untoward incident happened. 31. 31. The learned trial court also observed that this was the first offence committed by the accused (respondent No. 2) and he was not previously convicted for any offence and accordingly, instead of convicting the respondent No. 2, the learned trial court deemed it appropriate to let him off by admonishing him by warning not to do such act in future in discharging official duty which would cause harm to the general public. 32. The learned trial court also directed the District Legal Services Authority, Nagaon to fix appropriate compensation to be paid to the wife of the victim. 33. Learned counsel for the appellant (wife of the deceased) has submitted that the respondents were responsible for causing the death of the deceased and they were accordingly properly charged under section 302, IPC and it has been stated that there are sufficient evidence/material on record to sustain the aforesaid charge. It has been submitted that even if the charge under section 302, IPC is not made out definitely, charge under section 304, IPC is certainly made out because of the manner in which the respondents assaulted the deceased by pushing him on a light post as a result of which he sustained interned injuries causing his death. It has been submitted that had the respondents not pushed the deceased by banging his head on the light post, the deceased would not have suffered the internal injury which ultimately led to his death. 34. It has been submitted that there were eye witnesses, PWs 1, 2 and 7 who had witnessed the respondents pushing him because of which his head struck with the light post and became unconscious. Thus, even if no external injury was visible, because of the banging of his head on the light post, the internal injury was caused which is corroborated by the medical evidence, which ultimately caused his death. It has been submitted that the Doctor who conducted the post mortem also categorically mentioned that though he did not give the final opinion regarding the cause of death, the internal haemorrhage which the deceased suffered was the cause of death due to sudden shock and coma. It has been submitted that the Doctor who conducted the post mortem also categorically mentioned that though he did not give the final opinion regarding the cause of death, the internal haemorrhage which the deceased suffered was the cause of death due to sudden shock and coma. It has been accordingly submitted that since the incident occurred in full public view witnessed by many people including PWs-1, 2 and 7 who were at the place of occurrence and who were not interested witnesses, but were natural witnesses, and since their evidence had not been shaken; the respondents ought to have been convicted under section 302, IPC and if not under section 302, IPC certainly under section 304, IPC and definitely not certainly under section 352, DPC as had been done by the learned trial court. 35. It has been also submitted that since the death of the deceased was caused by use of criminal force as also held by the learned trial court/the punishment given with mere admonition is not sufficient and in fact, he ought to have been punished with imprisonment as provided under the aforesaid section 352, IPC. 36. Having heard the learned counsel for the parties and on perusal of the materials on record, what is established without any doubt is that the deceased-Manoj Deka died in an incident happened in the market area in public view in the evening of 1.7.2008 in which the involvement of respondent No. 2 has been clearly established. As regards the respondent No. 1, there is no cogent material evidence linking him with the death of the deceased and as such the finding by the trial court qua the respondent No. 1 does not require any interference by us. 37. As to whether the respondent No. 2 was directly responsible for the death of the deceased, however, has to be examined in the light of the evidences which have emerged in course of the trial. The fact that the respondent No. 2 had a scuffle with the deceased and the fact that he pushed the deceased is in evidence and that was the finding of the trial court. The fact that the respondent No. 2 had a scuffle with the deceased and the fact that he pushed the deceased is in evidence and that was the finding of the trial court. It is also in evidence that the deceased hit an electric poll on his head and thereafter, he temporarily lost consciousness and he was taken care of by the people who had assembled there by sprinkling water on his head and also by taking him to the Hospital for treatment. It is also on record that the deceased received internal injuries/internal haemorrhage which, according to the medical expert, was the cause of death even if the final report regarding the examination of viscera was awaited. 38. Thus, there is sufficient evidence to show linkage of the act of the respondent No. 2 with the death of the deceased. However, in order to convict a person for charge under section 302, IPC, the following ingredients have to be clearly established. Firstly, it has to be established that the act by which the death was caused was done with the intention of causing death, or Secondly, if the act was 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 Thirdly, if the act was 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 Fourthly, 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. 39. As regards the first condition, there is nothing in the evidence to show that the respondent No. 2, Rafikul Islam had any intention to cause death of the deceased. As regards the second condition, it may be noted that there was no external injury and the petitioner died of certain internal injury/internal haemorrhage caused in his brain. From the evidence as discussed above, there is no evidence to show that the respondent No. 2 had the intention to cause such an internal injury which he knew would likely to cause death. From the evidence as discussed above, there is no evidence to show that the respondent No. 2 had the intention to cause such an internal injury which he knew would likely to cause death. In fact, even if, the respondent No. 2 can be said to have pushed the deceased, it cannot be said that he had deliberately pushed him to hit him on the light post to cause such internal injury. Thus, it cannot be said that he had the intention to cause the internal injury which he knew would likely to cause death. Coming to the third situation, it also cannot be said that the respondent No. 2 had the intention of causing the internal injury/internal haemorrhage in his brain which was sufficient in the ordinary course of nature to cause death. What the evidence shows is that there was some scuffle between the deceased and the respondent No. 2 and the respondent No. 2 pushed the deceased. By that very act of pushing it cannot be said that the respondent No. 2 had the intention of causing the internal bodily injury which is sufficient in ordinary course to cause death. Accordingly, the third situation is not attracted. Coming to the fourth situation, it cannot be said that the respondent No. 2 knew that by pushing the deceased, it was so imminent that it would in all probability cause the death of the deceased. Further, even if pushing of the deceased by the respondent No. 2 is held to be proved still cannot be said that it risked causing of death or cause such injury which would led to death. Thus, the fourth condition is also attracted. Accordingly, this court would hold that the ingredients which are required for establishing an offence under section 302, IPC are not established in the present case and accordingly, the question of convicting any of the respondents under section 302, IPC does not arise. 40. Coming to the other argument of the learned counsel for the appellant that even if any of the respondents cannot be convicted under section 302, IPC, definitely, the respondent No. 2 could be convicted under section 304, IPC with the offence of committing culpable homicide not amounting to murder. Culpable homicide not amounting to murder is covered by sectioh 304, IPC which consists of two parts. Culpable homicide not amounting to murder is covered by sectioh 304, IPC which consists of two parts. The first part deals with culpable homicide not amounting to murder when the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death. As discussed above, there is no evidence showing that the respondent No. 2 had the intention of causing death of the deceased nor had the intention to cause the internal injury in the brain as was likely to cause death. 41. Part II of section 304, IPC provides that it would also amount to culpable homicide not amounting to murder if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. In the present case, the question is whether the respondent No. 2 had the knowledge that by pushing the deceased, it was likely to cause death. As discussed above, there is no evidence on record to show that the respondent No. 2 had knowledge that by pushing the deceased, the head of the deceased would hit the light post and it would cause death. From the records, as discussed above, what emerges is that the respondent No. 2 did push the deceased after a scuffle had ensued between him and the deceased, after the deceased refused to cooperate with the checking which the respondent No. 2 was insisting upon. However, it cannot be said by any stretch of imagination that by pushing the deceased, the respondent No. 2 had the knowledge that by such an act, it will cause the death of the deceased. It is not that the respondent No. 2 was pushing the deceased before a running vehicle which would in most likelihood could cause death or was pushing him over a cliff or such dangerous place where it would most likely to cause death. Pushing was done in a market area that too after a scuffle broke out between the two. Even if, because of the pushing the deceased hit his head with the light post, it cannot be stated with any certainty that such pushing and dashing against light post would result into death. Pushing was done in a market area that too after a scuffle broke out between the two. Even if, because of the pushing the deceased hit his head with the light post, it cannot be stated with any certainty that such pushing and dashing against light post would result into death. At best, it would most likely cause certain injury but it cannot be said that by said act, it would lead to death. The absence of any external injury on the head indicates that there was no forceful push so as to cause injury. Unfortunately, since the head struck the electric poll, it caused the internal injury. But it cannot be said that the respondent No. 2 pushed the deceased knowingly to cause the internal injury. 42. Under the circumstances and in the light of the evidence discussed above, this court is also not inclined to hold that the ingredients of culpable homicide not amounting to murder has been established against the respondent No. 2 to convict him under section 304, IPC. 43. That brings us to consider as to whether the trial court had rightly convicted the respondent No. 2 under section 352, IPC. As regards offence under section 352, IPC what is required to be established is whether the respondent No. 2 had used criminal force, otherwise, then on grave provocation. 44. This court has also noted that a day prior to the incident, certain bomb blast had taken place in Nagaon and Morigaon and as such, the security personnel were in heightened state of alert. The respondent No. 2 was carrying out lawful duty of checking of belongings of persons to avoid any untoward incident. However, it is also to be kept in mind that when dealing with the citizens, the police personnel have to be respectful and cannot unnecessarily show their might and use force. If a person resists the lawful carrying out of duty by the police personnel, such a person ought to be apprehended and booked accordingly. It is not the case that the deceased had assaulted the respondent No. 2 but it appears that he only resisted the search. The respondent No. 2 also ought not to have thrown out the belongings in the bag of the deceased-Manoj Deka, which ultimately led to certain scuffle. 45. It is not the case that the deceased had assaulted the respondent No. 2 but it appears that he only resisted the search. The respondent No. 2 also ought not to have thrown out the belongings in the bag of the deceased-Manoj Deka, which ultimately led to certain scuffle. 45. There is sufficient evidence to show that the respondent No. 2, Rafikul Islam in course of search, on being resisted by the deceased, had pushed the victim and as a result of which the victim's head hit the light post. Though the respondent No. 2 could have claimed that as the deceased did not cooperate and resisted because of which there was a scuffle, it can be said that there was no necessity on the part of the respondent No. 2 throw the contents of the bag or to push the deceased. Apart from the evidence that the deceased tried to obstruct the search by the respondent No. 2 there is no evidence that the deceased had used or tried to use force against the respondent No. 2. If any citizen including the deceased had resisted any lawful search conducted by police personnel like the respondent No. 2, such a person ought to have been apprehended and take necessary legal action against him rather than engaging in any such act of forcefully taking the belonging and pushing. It cannot be said on the basis of evidence which has emerged so far that there was a grave and sudden provocation given by the deceased to the respondent No. 2 for using the said criminal force. To that extent finding of the trial court in holding that the prosecution has been able to bring home the offence punishable under section 352, IPC against the respondent No. 2 is justified and accordingly is affirmed. 46. It is also to be remembered that the respondent No. 2 has not preferred any appeal against the judgment holding that offence under section 352, IPC had been established against the respondent No. 2. Thus, this finding by the learned trial court of the conviction of the respondent No. 2 under section 352, IPC cannot be disturbed at the instance of the respondent No. 2 who has not challenged the said finding. 47. Thus, this finding by the learned trial court of the conviction of the respondent No. 2 under section 352, IPC cannot be disturbed at the instance of the respondent No. 2 who has not challenged the said finding. 47. The only issue which arises for consideration is whether the trial court ought to have let off the respondent No. 2-Rafikul Islam by merely admonishing without imposing any punishment. As regards this, section 352, IPC does not provide for any punishment by way of admonishing. Thus, imposing any form of punishment not provided under the particular offence will not be permissible. Secondly, there is a specific finding by the learned trial court that the respondent No. 2, Rafikul Islam used criminal force on the victim which ultimately caused the death of the deceased, with which we are in agreement. Section 352, IPC provides that whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees or with both. From the above, it is clear that one of the following punishments can be imposed, (a) imprisonment which may extend to 3 months, or, (b) fine which may extend to five hundred rupees, or (c) imprisonment and fine. The aforesaid section does not provide for punishment by way of admonition. Only, any of the three kinds of the punishment may be imposed. Under the circumstances, this court is of the opinion that ends of justice will be served if the respondent No. 2, Rafikul Islam is sentenced to undergo imprisonment for the period of 1 month as the use of criminal force had ultimately led to the death of the deceased, which has been also the finding of the trial court. 48. Accordingly, the present appeal is disposed of by upholding the judgment dated 17.10.2015 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 62/2013, however, by interfering with the quantum of punishment meted out to the respondent No. 2, Rafikul Islam by sentencing him to undergo imprisonment for a period of 1 month. 49. 48. Accordingly, the present appeal is disposed of by upholding the judgment dated 17.10.2015 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 62/2013, however, by interfering with the quantum of punishment meted out to the respondent No. 2, Rafikul Islam by sentencing him to undergo imprisonment for a period of 1 month. 49. It has been submitted at the Bar that the respondent No. 2 was arrested in connection with the aforesaid case on 3.7.2008 during the investigation and released on bail on 30.9.2008. If that is so, the period of detention already undertaken by the respondent No. 2 during the investigation and trial shall be set off against this period of one month of imprisonment awarded by this court as a punishment under section 352, IPC.