JUDGMENT : N. Kotiswar Singh, J. Heard Mr. R.M. Choudhury, learned amicus curiae for the appellant. Also heard Ms. B. Bhuyan, learned Senior counsel and Additional Public Prosecutor, Assam, appearing for the respondent No.1, and Ms. R.D. Mazumdar, learned counsel, appearing for informant/respondent No.2. 2. This is a jail appeal in which Mr. R.M. Choudhury, legal aid counsel, has been appointed as amicus curiae by the Court to assist the appellant. So is Ms. R.D. Mazumdar, learned counsel appointed by the Court to represent the informant/respondent No.2. 3. The present appeal has been preferred against the judgment dated 29.08.2015 passed by the learned Sessions Judge at Goalpara in Sessions Case No.305/2013, by which the accused Prodip Kumar has been convicted under Section 302 of IPC and sentenced to suffer rigorous imprisonment for life with fine of Rs. 5,000/- and also convicted under Section 307 of IPC and sentenced to suffer rigorous imprisonment for five years and both the sentences are to run concurrently. 4. It has been submitted by Mr. Choudhury, learned amicus curiae that though one of the persons who was injured and allegedly thrown out of the train by the appellant had given testimony, the same is not free of doubts and it is primarily on the statement of that survivor that the learned Trial Court had convicted the appellant under Sections 302 and 307 of IPC. It has been submitted that in fact, the prosecution has failed to prove the charges against the appellant beyond reasonable doubt and as such, he is entitled to be acquitted. 5. Before we appreciate the aforesaid submissions advanced, it may be necessary to briefly refer to the facts and evidences on record on the basis of which the learned Trial Court convicted the appellant under Section 307 of IPC as well as under Section 302 of IPC for committing murder of the deceased one Girish Chandra Das. 6. 5. Before we appreciate the aforesaid submissions advanced, it may be necessary to briefly refer to the facts and evidences on record on the basis of which the learned Trial Court convicted the appellant under Section 307 of IPC as well as under Section 302 of IPC for committing murder of the deceased one Girish Chandra Das. 6. An FIR was lodged on 11.04.2013 by one Manomohan Das, the younger brother of the deceased Girish Chandra Das, to the effect that at around 7 p.m. on 10.04.2013 when the deceased Girish Chandra Das, who was a mason by profession, was returning home by train after completing his day’s work along with three others, one of whom also suffered injury, he was pushed out of the train by the appellant at a place called Balla under the Krishnai Police Station whereupon the deceased suffered severe injuries. Though he was rushed to the Goalpara Civil Hospital, he succumbed to his injuries. Another person, namely, Uttam Rai, who was part of the said group, was also allegedly pushed out of the train by the appellant and sustained injuries. 7. On the basis of the said FIR, a police case being Krishnai P.S. Case No.84/2013 under Section 307/302/325 of IPC was registered. On completion of the investigation, the appellant was charge-sheeted of committing murder intentionally by causing death of Girish Chandra Das punishable under Section 302 of IPC and also was charged of pushing Shri Uttam Rai from the speeding train though he survived, thus, committing offence under Section 307 of IPC. 8. In order to substantiate the aforesaid two charges, the prosecution examined as many as 10(ten) witnesses including the survivor Shri Uttam Rai as PW-4. On the basis of the evidence so adduced by the prosecution, the learned Trial Court convicted the appellant under Section 307/302 of IPC as mentioned above. 9. We will now proceed to examine the evidence on record. 10. PW-1 is the informant Manomohan Das. He was not an eye witness to the incident, who was subsequently informed by his niece that the deceased Girish was no more and he was pushed out of the train and also the other person, namely, Uttam was also pushed out of the train. 10. PW-1 is the informant Manomohan Das. He was not an eye witness to the incident, who was subsequently informed by his niece that the deceased Girish was no more and he was pushed out of the train and also the other person, namely, Uttam was also pushed out of the train. On being so informed, he along with others went to the place of occurrence and when they reached near the rail track, he heard someone crying for help and there he saw Uttam lying in an injured condition. When he asked the injured Uttam about Girish, he showed with his hands that Girish had been hit by the train and accordingly, he proceeded towards the railway line and found Girish lying on the red soil. Though he was alive at that time, he was not in a position to speak and he was immediately rushed to Goalpara hospital and the injured Uttam was also taken to the hospital. Later on PW-1 came to know that Girish had died. He stated that at that time his nephew Ujjal Das was with him who apprehended the appellant and he took him to his house. Thereafter, the appellant was handed over to the police station. In his cross-examination, he admitted that he was not an eye witness to the incident. 11. The next witness is one Ujjal Das (PW-2), who was accompanying the deceased while returning home on completion of work. He stated that he was sitting with another companion Amzad Ali (PW-3), a labourer, in the front seat, and the deceased, who was his father, was sitting on a separate seat. He stated that when they reached near the place called Balla near Krishnai, they heard a hue and cry that someone had pushed out his father and brother-in-law from the train. The passengers in the train then apprehended the appellant inside the coach. Later on, they could find out his father and the brother-in-law. His father though was alive for some time, was not in a position to speak and he was taken to hospital where he was declared dead. His brother-in-law Uttam Rai who was examined as PW-4 also sustained injuries and he was treated in the Goalpara Civil Hospital. Later on, they could find out his father and the brother-in-law. His father though was alive for some time, was not in a position to speak and he was taken to hospital where he was declared dead. His brother-in-law Uttam Rai who was examined as PW-4 also sustained injuries and he was treated in the Goalpara Civil Hospital. In the cross-examination, though he stated that the appellant had pushed his father and brother-in-law out of the train, PW-2 stated that he was so informed by the public. Thus, from the evidence of PW-2 it appears that he was not an eye witness though he was in the same compartment of the train where the deceased and the injured were travelling. 12. The next witness is PW-3 Amzad Ali, the labourer, who was returning from work along with the deceased and injured. He also stated that he and Ujjal (PW-2) were sitting in the front seat while Girish (deceased) and Uttam (injured) examined as PW-4, were sitting behind them. He stated that he heard a hue and cry and the public stated that the appellant had pushed Girish and Uttam out of the train. Then on being told so, he and Ujjal detained the appellant. In the cross-examination, he stated that a person amongst the public said that the appellant had pushed the deceased and the injured out of the train but he did not know the name of the person who had stated so. 13. The next witness is Uttam Rai (PW-4), the injured witness, who was also allegedly pushed out of the train by the appellant. He appears to be the star witness. Primarily relying on his evidence, the learned Trial Court convicted the appellant. In his deposition, he stated that Ujjal Das (PW-2), the deceased, Amzad Ali (PW-3) and himself had gone to Singra by train and for returning home they boarded a train at Singra around 6 p.m. He stated that Ujjal Das (PW-2) and Amzad Ali (PW-3) were sitting in the front and he and the deceased Girish were seated in the back together. He stated that Girish then got up and proceeded towards the toilet for urinating, while he remained seated in his place. He also stated that when the deceased came out after urinating, the appellant attacked Girish and assaulted him and pushed him out of the train. He stated that Girish then got up and proceeded towards the toilet for urinating, while he remained seated in his place. He also stated that when the deceased came out after urinating, the appellant attacked Girish and assaulted him and pushed him out of the train. When he came forward to ask what had happened, the appellant dealt a fisted blow near his right ear because of which he sustained injury on the hand. Thereafter, the appellant pushed him too out of the train because of which he sustained injuries. He also stated that on that day they received their payments. Thus, from the evidence-in-chief of the said witness, PW-4, it appears that he had seen the appellant pushing Girish out of the train and he was also pushed by the appellant out of the train resulting in the injuries to himself and the death of the deceased. However, we have also noted that in the cross-examination when a suggestion was made by the defence counsel that he did not inform the police that Ujjal Das (PW-2) and Amzad Ali (PW-3) were sitting in the front while the deceased and himself (PW-4) were seated in the back and that the deceased had gone to the toilet to urinate and he remained seated and that they had received their payments on that day and that a fisted blow had been dealt near his right ear, he denied having not said so. During the cross-examination, he stated that after hearing a hue and cry when he proceeded to the place he found that the deceased Girish had already been pushed away. He also stated that he went there immediately after Girish had been pushed out. He also stated that when he proceeded, a blow with fisted hand was dealt upon him. He also stated that he had not fallen outside the coach when the blow with fisted hand was dealt on him. However, he fell inside the coach itself, but he does not know what had happened after that. He also stated that since he was lying unconscious he did not know who took him away and how. 14. The next witness examined was PW-5 Gokul Das, who was the son of the deceased. He went to the place of occurrence when he was informed that his father and Uttam (PW-4) were thrown out of the running train. He also stated that since he was lying unconscious he did not know who took him away and how. 14. The next witness examined was PW-5 Gokul Das, who was the son of the deceased. He went to the place of occurrence when he was informed that his father and Uttam (PW-4) were thrown out of the running train. He stated that his brother Ujjal (PW-2) was also with the deceased and the injured and PW-5 was informed that some dacoits had thrown them from the running train and later on they found the deceased and the injured near the railway tracks and they were taken to the hospital. Thus, he is not an eye witness. 15. The next witness was PW-6, Dr. Bichitra Kr. Bordoloi, who conducted the post-mortem examination on the dead body and found the following injuries:- “Injuries: 1) Multiple abrasion with bruises over the face, chest, upper abdomen, leg and left elbow; sizes from pin head to maximum 10 x 16 cm. 2) Fracture of 5th to 9th ribs at anterior axillary line (right). 3) 2 x 12 cm size laceration with depressed fracture on the right part of junction. 4) 1 x 8 cm size laceration posterior to injury No.3. 5) 2.4 cm size laceration with depressed fracture over the right part of forehead just right from mid-line. 6) 2 x 2 cm size bone deep laceration over the middle of the right cheek. 7) 6 x 6 size laceration over the left elbow on the dorsal aspect. 8) Compound fracture of left great toe.” The doctor gave the opinion that the death was due to coma and shock as a result of ante mortem head injuries as described, following irregular hand object impact. In the cross-examination, he stated that if anybody falls on a hard substance or falls from a running vehicle, such injuries may be caused. 16. PW-7 is one Dr. Ashok Kr. Doley, who examined the injured person, namely, Uttam Rai (PW-4), who found the following injuries on his body:- “1) Multiple lacerated injuries both arm and both legs. 2) Lacerated injury over skull (temporal region), 5 cm x 4 cm x 2 cm in size. X-ray of chest No abnormality detected. X-ray of shoulder joint No abnormality detected. X-ray AP Skull No abnormality detected. 2) Lacerated injury over skull (temporal region), 5 cm x 4 cm x 2 cm in size. X-ray of chest No abnormality detected. X-ray of shoulder joint No abnormality detected. X-ray AP Skull No abnormality detected. PW-7 stated that the injuries were simple in nature which could be caused by falling from a running vehicle. 17. PW-8 is one Biswajit Kalita, who was the VDP Secretary of the village, who came to know about the incident after being informed. He was not an eye witness. 18. PW-9 is N.K. Nath, who completed the investigation of the case, which was started by PW-10. He examined the witnesses and held inquest on the dead body and sent the dead body for post-mortem examination. 19. PW-10 is one Chandra Kanta Kalita, who was the I.O. of the case, who started the investigation of the case at the initial stage. In the crossexamination of the said I.O. (PW-10), referring to the evidence of PW-4 Uttam Rai, he stated that PW-4 did not state that Ujjal Das (PW-2) and Amzad Ali (PW-3) were seated in the front side while the deceased and the injured were seated in the back and that the deceased Girish had gone to the toilet to urinate and that he had proceeded himself and that they had received payments on that day and that PW-4 had been dealt with a blow near his right ear. Thus, the aforesaid evidence of I.O. would suggest that what PW-4 stated before the Court was not told to the I.O. during the investigation. 20. On completion of recording evidence of the prosecution witnesses above-named, the appellant was confronted with the incriminating materials/ evidences which were brought on record. He denied all the allegations and the incriminating materials brought to his notice. However, when he was asked by the Court whether he wanted to say anything, he stated that at that time he was coming from Guwahati in a train and the deceased Girish and the injured Uttam Rai were in the same coach. He also stated that they were drinking wine and they slapped and assaulted him and one of them tried to push him out of the train and accidentally he fell out and the other also followed him, but he also fell out. He also stated that he had pushed them out from the train. 21. He also stated that they were drinking wine and they slapped and assaulted him and one of them tried to push him out of the train and accidentally he fell out and the other also followed him, but he also fell out. He also stated that he had pushed them out from the train. 21. We have carefully examined the original records of the Trial Court. Though, the appellant denied the charges, yet he implicitly accepted that there was a confrontation between him and the deceased and the injured Uttam Rai (PW-4) on some issues but as to what led to the confrontation, the evidence is not clear. While the appellant claimed that the deceased and the injured had assaulted him, during which process they fell out of the train, he also states that he had pushed them out of the train. 22. We have given our anxious consideration to the evidences on record. Before we consider the statement of the appellant recorded under Section 313 Cr.P.C. we will first analyze the evidence of the prosecution witnesses more particularly, of the evidence of PW-4, the injured victim also survived the fall from the train on allegedly been pushed by the appellant. 23. As regards other witnesses, namely, PW-2 Ujjal Das and the PW-3 Amzad Ali, who were travelling along with the deceased and the injured, they apparently did not witness the act of pushing of the deceased and the injured (PW-4) by the appellant. As mentioned in their evidences, they were informed by the co-passengers in the train that the appellant had pushed the deceased and the injured. It is also noted that no co-passenger who had apparently seen the appellant pushing the deceased and the injured was examined during the trial. That leaves only the evidence of PW-4 Uttam Rai, who was allegedly pushed by the appellant out of the train but survived. However, when we closely examine his evidence we find that though he stated in the examination-in-chief that the appellant had pushed him out, yet in the cross-examination he stated that he heard a hue and cry and going there he found that Girish had already been pushed away. He continues to say in the cross-examination that he went there immediately after Girish had been pushed out. He continues to say in the cross-examination that he went there immediately after Girish had been pushed out. As regards the pushing of PW-4 himself allegedly by the appellant, this is what he stated in the cross-examination: “When I proceeded, a blow with fisted hand had been dealt to me. People had started coming thereby one by one. I had not recognized the people present in the Court. I had not fallen outside the coach when the blow with fisted hand had been dealt to me. However, I fell down inside the coach itself, but I do not know what happened after that.” The said statement made by PW-4 in the cross-examination, therefore, to some extent dilutes his assertion made in the evidence-in-chief that the appellant had pushed him away from the train. He states in the cross-examination that after he received the blow with fisted hand, he fell down inside the coach itself and thereafter he did not know what happened. In other words, so long as he was conscious, he was inside the coach of the train and he did not make a specific statement that the appellant had pushed him when he was conscious though it is quite likely that after he fell down inside the coach he may have been also pushed, but that will be in the realm of inference and not on the basis of any direct evidence. 24. Keeping in mind the aforesaid evidence on record, we will now examine the statement of the appellant recorded under Section 313 Cr.P.C. Though he makes the statement that there was certain quarrel between him and the deceased and the injured, he alleged that it was the deceased and the injured who had assaulted the appellant and they fell down. At the same time, he also states that he had pushed them out from the train. Though statement of an accused recorded under Section 313 Cr.P.C. is not evidence on the basis of which an accused cannot be convicted unless there are corroborating admissible material evidence on record, the statement certainly can be considered to understand what actually transpired at that relevant time. On the basis of the evidence adduced by the prosecution, and the statement of the appellant made under Section 313 Cr.P.C., what we can say is that there appears to have been certain physical confrontation between the appellant, the deceased and the injured. On the basis of the evidence adduced by the prosecution, and the statement of the appellant made under Section 313 Cr.P.C., what we can say is that there appears to have been certain physical confrontation between the appellant, the deceased and the injured. As to the reason for such physical confrontation, it has not come out very clearly, though the appellant claims that the deceased and the appellant were consuming wine. But that does not appear to have been corroborated by the medical evidence as also pointed out by Ms. R.D. Mazumdar, learned counsel for the respondent No.2, as in the post-mortem report relating to the condition of the stomach and contents, it has been recorded that it was healthy and contained 200 ml of partially digested food materials without specific smell. If wine had indeed been consumed as alleged by the appellant that would have caused some kind of odor which would have been detected during the post-mortem examination which was conducted on the very next day. But since the finding is that the contents of the stomach were without specific smell, it would perhaps indicate absence of any alcoholic substance in the stomach. At the same time, what we have noted is that the real motive or intention for committing the alleged offence by the appellant has not come out clearly. Though in the statement recorded under Section 161 Cr.P.C. of PW-4, the injured person, it has been mentioned that the appellant demanded money, however, we cannot look into that statement as the same is not admissible in evidence and not being corroborated by any evidence led during the trial. There is no other evidence on record to indicate that the appellant had demanded money. Though PW-5 Gokul Das states in his deposition that he was informed that some dacoits threw the deceased and the injured out from the running train, that itself also hearsay evidence thus not admissible. Thus, there is no material evidence to indicate the motive or intention behind the commission of the offence by the appellant. The appellant apparently appears to be not known to the deceased or the injured. As stated by him in his statement recorded under Section 313 Cr.P.C. he was coming from Guwahati and there is no evidence on record of any kind of relationship, strained or otherwise, with the deceased and injured. The appellant apparently appears to be not known to the deceased or the injured. As stated by him in his statement recorded under Section 313 Cr.P.C. he was coming from Guwahati and there is no evidence on record of any kind of relationship, strained or otherwise, with the deceased and injured. Thus, the appellant appears to be one of the co-passengers who are travelling in the train in the same compartment as the deceased and the injured. Though the prosecution evidence read with the statement of the appellant recorded under Section 313 Cr.P.C. indicates that there was a fight between the appellant, deceased and the injured and they were thrown out by the appellant, the intention has not been clearly made out. From the record it appears that the incident happened when there was a fight between them, during which time the deceased and the injured were pushed out of the train by the appellant. 25. Under the circumstances, we are inclined to hold that this is not a case of commission of offence punishable under Section 302 of IPC, but an offence which is covered by Section 304 Part II as this is a case of culpable homicide not amounting to murder without intention to kill the deceased but which happened during a confrontation between them in a running train. However, by the act of the appellant death has been caused to one person. Accordingly, we are inclined to convert the conviction under Section 302 of IPC to Section 304 Part II of IPC. Since we have held that the intention or motive of the appellant to cause the homicidal death of the deceased has not been established to convict him under Section 302 of IPC, we are also unable to convict the appellant under Section 307 of IPC in as much as to convict a person under Section 307 of IPC it is necessary that by such an act, without the intervening circumstances, he would be guilty of murder. In the present case, the prosecution case that the appellant intentionally threw the injured Uttam Rai (PW-4) from the running train has not been proved beyond reasonable doubt. The said Uttam Rai (PW-4) himself stated during the corss-examination that when he was hit, he fell inside the train and then he lost his consciousness. In the present case, the prosecution case that the appellant intentionally threw the injured Uttam Rai (PW-4) from the running train has not been proved beyond reasonable doubt. The said Uttam Rai (PW-4) himself stated during the corss-examination that when he was hit, he fell inside the train and then he lost his consciousness. After he fell down in the train, who had thrown him away from the running train has not been clearly established. Accordingly, we hold that the prosecution has not been able to prove the charge under Section 307 of IPC beyond reasonable doubt and accordingly, acquit the appellant of the charge under Section 307 of IPC. 26. In the result, we convict the appellant under Section 304 Part II of IPC and sentence the appellant to undergo rigorous imprisonment for a period of 9 years. However, from the record we have seen that the appellant has already undergone imprisonment more than 9 years and accordingly, he shall be entitled to be released forthwith. It is ordered accordingly. 27. We have also noted that the learned Trial Court had directed for grant of compensation under Section 357A of Cr.P.C. to the injured Uttam Rai and the heir/dependents of the deceased Girish Chandra Das. However, nothing is on record as to whether any such compensation had indeed been paid to them. 28. Under the circumstances, the Goalpara District Legal Services Authority will take necessary steps to facilitate payment of compensation by the State as directed by the learned Trial Court to the injured Uttam Rai and also to the heirs/dependents of the deceased Girish Chandra Das in terms of the scheme prepared by the State of Assam under sub-section 9 of Clause 5 of the Assam Victim Compensation Scheme, 2012 as notified on 05.03.2016 and which has also been revised on 01.02.2019. The aforesaid exercise shall be undertaken by the State with the assistance of the Goalpara District Legal Services Authority within a period of 2(two) months from the date of receipt of the certified copy of this order. 29. A copy of this order be furnished to the Secretary, Goalpara District Legal Services Authority. 30. LCR be sent back forthwith to the concerned Court. 31. Necessary remuneration be paid to Mr. R.M. Choudhury, learned amicus curiae for the appellant as well as Ms. R.D. Mazumdar for the respondent No.2 both appointed by the Court, as per rules.