JUDGMENT : Rajesh Mazumdar, J. 1. This Criminal Appeal has been filed from Jail by the accused convict against the order dated 13-09-2023 passed by the Additional Sessions Judge Udalguri in Sessions Case No. 38/2022. The Guwahati High Court Legal Services Committee had appointed Ms. N. Hassan, learned Advocate to render legal assistance to the appellant herein. 2. Accordingly, this Criminal Appeal from Jail was filed on 12 th June 2024. Notices were issued to the respondent No. 2/informant on 27-05-2024 and the services were completed on 03-06-2024. The respondent No. 2 did not enter appearance. 3. We have heard the learned counsel appearing for the appellant and we have also heard the arguments put forward by the learned Additional Public Prosecutor appearing for the State. 4. The brief facts of the case as reflected from the records is that on 30-11- 2021 the informant had lodged an FIR at Harisinga Police Station stating that on 27-11-2021 at about 3:00 P.M her husband went to the tea garden line of the appellant herein and following an altercation, the appellant assaulted her husband with hands and legs. The husband of the informant suffered injuries for which he was admitted to the Tezpur Medical College and Hospital but on the night of 29-11-2021 he expired while undergoing medication. Following the information, Harisinga Police Case No. 98 of 2021 under Section 302 of the IPC was registered and investigation was taken up. Accordingly, the Investigating Officer conducted the investigation and the case was committed to the Court of the learned Sessions Judge Udalguri who transferred the case to the Court of the Additional Sessions Judge Udalguri. 5. During the course of trial, the prosecution examined as many as 10 witnesses in total including the informant, the Medical Officer and the Investigating Officer. The learned Trial Court formed three points for determination viz; (i) whether the death of the husband of the petitioner was anti-mortem and homicidal in nature, (ii) whether on 27-11-2021 the appellant had physically assaulted the husband of the informant causing his death on 29- 11-2021, and (iii) if so, whether the appellant did so with an intent to commit murder of the husband of the informant. 6. 6. The informant was examined as PW-1 and in her statement it is reflected that she had left for work on 27-11-2021 and at 4:00 P.M when she came back to her residence, her husband told her that the accused had kicked at his belly. The deceased was taken to the Tea Garden Hospital. However, her husband was referred to the Tezpur Medical College Hospital and since it was getting dark, the husband was taken to the Medical College and Hospital on the next day. In the hospital, the husband of the petitioner died while undergoing medication. 7. In the cross-examination, the PW-1 had deposed that she did not witness the incident of physical assault and that she had deposed before the court whatever she had heard from her husband. She stated that she did not notice any external injury on the body of her husband on the day of occurrence and that her husband had stated that he had sustained injuries at his belly. The PW- 2 who had adduced his evidence stated that he had gone to the house of the accused at about 3 pm on the fateful day and prior to taking liquor, the accused had asked for payment for the liquor. The accused did not receive the money from the deceased. Since the deceased and the accused were related through their wives, the deceased had retorted in jest and when the appellant did not get the full amount asked for, the appellant pushed him and the deceased fell down. Thereafter, the accused kicked on the belly of the deceased. After the incident, the deceased went away to his residence and they all went back to their own residences. In the cross-examination of the PW-2, he has stated that he had seen the accused kicking the deceased once. He further stated that the deceased did not take liquor at the time of occurrence and he did not see any injury marks or blood oozing out of the body of the deceased. 8. The PW-3 was the wife of the accused and on the fateful day, she heard a little bit of quarrel when she came out and found the deceased and the other persons accompanying him had left. 9. 8. The PW-3 was the wife of the accused and on the fateful day, she heard a little bit of quarrel when she came out and found the deceased and the other persons accompanying him had left. 9. The PW-4 was another eyewitness to the incident who stated that he had gone along with the deceased and two other persons to the house of the accused for taking liquor. He repeated the story of the quarrel between the accused and the deceased and that he saw the accused kick the deceased. 10. In his cross-examination, he stated that the accused was wearing chappal and the accused did not hit the deceased after he fell down. He further stated that the deceased fell down on a bamboo lying in the house of the accused's courtyard. He did not see any blood oozing from the body of the deceased. 11. The PW-5 stated on similar lines as given by the statements of the other eyewitnesses. He stated that the accused had pushed down the deceased and kicked on the abdomen of the deceased. In cross-examination, the PW said that the accused did not hit the deceased with his hands. There was no blood oozing out from the injury of the deceased. 12. PW-6 was a relative of both the deceased and the accused and he stated that on the fateful night, the informant had called him and reported that the accused had physically assaulted the deceased who was the brother of the PW- 6. He stated that he had arranged for the money for sending the deceased to the Tezpur Medical College and Hospital where the deceased expired at about 11:30 P.M. 13. PW-6 in his cross-examination stated that he had not witnessed the incident. 14. PW-7, who was the Medical Officer of the case, stated that while he was working as the Medical and Health Officer-1 at Udalguri Civil Hospital, he conducted the post-mortem upon the dead body of the deceased. And upon examination, he found wounds in the nature of laceration in the occipital bone. There was haemorrhage inside the membrane of the cranium and haemorrhage was seen in both the cerebral hemisphere. There were no injury marks present in the abdominal area. 15. In his opinion, the death was due to neurogenic shock following head injury which was ante-mortem in nature. There was haemorrhage inside the membrane of the cranium and haemorrhage was seen in both the cerebral hemisphere. There were no injury marks present in the abdominal area. 15. In his opinion, the death was due to neurogenic shock following head injury which was ante-mortem in nature. In his view, the injuries were sufficient in the ordinary course of nature to cause the death of the person. In his cross- examination, the PW-7 stated that except the head injury, no other injury was found. 16. The PW-8 was the investigating officer of the case who deposed as per the investigation made by him. 17. The PW-9 was another investigating officer who also gave his evidence as per the records available. 18. The PW-10 was the Executive Magistrate-cum-Circle Officer of Harisinga Revenue Circle, Tongla, who had conducted the inquest over the dead body of the deceased. 19. Upon an examination of the evidence led by the prosecution, the learned Trial Court had come to a finding that the deceased had sustained homicidal injury ante-mortem in nature. The Learned Trial Court further came to the conclusion that the head injury of the deceased was caused by the accused on the day of the occurrence which further led to the death of the deceased on 29-11-2021. The learned Trial Court, after evaluating the evidence led by all the witnesses, had come to a conclusion that there was no evidence that there was enmity between the accused and the deceased prior to the incident and, therefore, it further came to a conclusion that the altercation had taken place in the heat of the moment without the appellant taking undue advantage or acting in any manner cruel or unusual. In the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicting a particular injury which in the ordinary course was sufficient to cause death, the learned Trial Court held that the accused did not intend to cause the death of the deceased, although he pushed him and the deceased sustained injury on his head by way of falling down due to a sudden quarrel. The learned Trial Court had come to a conclusion that the accused could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. 20. The learned Trial Court had come to a conclusion that the accused could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. 20. It is in that view of the matter that the learned Trial Court observed that it appeared that it can be held that the prosecution had established its case against the accused under Section 304 part 2 of the IPC without any difficulty. Thus he held that the accused did not have the intention to cause death but the act of the appellant was done with the knowledge that the injury given by the accused would be enough to cause death in the normal course of events. 21. The learned counsel appearing for the appellant has submitted that the learned Trial Court failed to notice the contradiction between the evidence given by the eyewitnesses and the injuries revealed in the post-mortem report. The learned counsel for the appellant has submitted that the three eyewitnesses stated that the accused had kicked the deceased in his stomach after he fell down from the push of the accused. The deceased had told his wife that he had sustained injury at his belly and there is no evidence to show that the accused had stated about any pain or injury to his head. The learned counsel for the appellant has further submitted that it was an evident fact during the evidence that the deceased was suffering from epilepsy and it cannot be ruled out that the deceased had suffered injuries in incidents other than the one which led to his death. 22. The learned counsel for the appellant has further submitted that the reason for the death of the deceased had always been understood to be because of the injury to his stomach upon the kick of the accused. However, it is only the post- mortem report which has revealed that the deceased had died of a haemorrhage in his cranial area. Therefore, the death of the deceased cannot be attributed to the injury caused when the appellant had kicked the deceased in his stomach and the findings of the learned Trial Court are submitted to be erroneous by the counsel for the appellant. Therefore, the death of the deceased cannot be attributed to the injury caused when the appellant had kicked the deceased in his stomach and the findings of the learned Trial Court are submitted to be erroneous by the counsel for the appellant. She has further submitted that the post-mortem report and the evidence of the eyewitnesses, if evaluated in the proper manner, would divulge that there was no relation with the injury that could have been caused by the accused with a kick to the stomach of the accused. 23. The learned counsel for the appellant has submitted that it is not the finding of the learned Trial Court that the accused had intended to cause a head injury upon the deceased, or to cause a head injury for that matter, and therefore, the very finding that the injury which ultimately led to the death of the deceased is not a correct finding of the learned Trial Court. The learned counsel for the appellant has submitted that it is not the finding of the learned trial court that the injury which ultimately led to the death of the deceased was caused by the accused with the knowledge that such an injury in the usual course would be enough to cause death. She has submitted that the observation of the learned Trial Court regarding the knowledge of the appellant was a finding which cannot be supported by either the evidence or in law and therefore, the learned counsel for the appellant submits that the impugned judgment be interfered with by this Court. 24. The learned Addl. P.P has submitted that it is established fact that the appellant and the deceased had entered into a scuffle and in the same process the deceased fell on the bamboo. He therefore submits that the accused had knowledge that a fall during the scuffle might lead to the deceased hitting the bamboo with his head. According to the learned Addl. P.P., when the injuries were sustained due to the fall and it led to the death of the deceased, there is no error in the trial for holding that the death of the deceased had occurred due to an injury sustained by him, which was given by the accused with the knowledge that such injury in the usual course would be enough to cause death. He therefore prays for a dismissal of the appeal. 25. He therefore prays for a dismissal of the appeal. 25. This Court has noted that the sentence imposed upon the accused was of simple imprisonment for four years and the accused having been taken into custody on 03.09.2023, as on the date of hearing of this appeal, he has already served two years of the sentence imposed. 26. This Court has gone through the evidence on record and the submissions of the learned counsel have also received due consideration. The court notices that there is no direct and unshaken evidence to show that the accused had struck the deceased in any area above the neck during the scuffle. The post- mortem report and the evidence of the Doctor who conducted the examination does not indicate any strike being dealt to the victim on the facial part or the head and no injuries were reported in the facial part of the victim. Thus, it is apparent that the victim had received injury to the head, which led to haemorrhage, when he fell down and his head struck the bamboo lying in the courtyard of the accused. There is no evidence, not to speak of reliable evidence, at all from any of the witnesses that the accused had pushed the victim with the intent that he should fall on the bamboo. 27. Therefore, in the considered opinion of this Court, the prosecution has not been able to prove beyond reasonable doubt that the accused had intended to push the victim onto the bamboo with the knowledge that the injury caused by such fall would lead to the death of the victim. It rather appears that the things were heating up, there was some push and shove due to which the victim fell down. As he fell down on the bamboo, the victim received injuries to head, which in turn led to internal haemorrhage. It is in evidence of the PWs that the victim did not complain of any pain or hurt to his head region and rather, he complained of being hit in the stomach. The post mortem report and evidence shows that the death was not caused due to injuries received, if any, on the stomach. 28. It is in evidence of the PWs that the victim did not complain of any pain or hurt to his head region and rather, he complained of being hit in the stomach. The post mortem report and evidence shows that the death was not caused due to injuries received, if any, on the stomach. 28. In the present case, knowledge cannot be attributed to the accused to the extent that he could have known that a push and shove might result in a fall on a bamboo which might hit the head of the victim with force enough to cause internal bleeding, which in turn could lead to death. 29. When the act of causing any injury to the head of the victim has not been proved beyond doubt by the prosecution, in the peculiar circumstances in which the victim suffered injuries, no knowledge that such injuries could cause death, can be attributed to the accused. 30. The fact of a push, the fall of the victim and kick to the stomach are proved. The fall on the bamboo and the consequent hemorrhage because of falling on the bamboo could have been caused by accident. There is no allegation of use of weapons or excessive force or repetitive assaults involved. No complete chain of events has been proved by the prosecution to impute mens rea on the accused, either of knowledge or of intention of doing an act so as to cause injuries which is likely to cause death. There is no evidence led that the injury intended to be caused by the kick to the stomach was enough in the ordinary course to result in death. 31. In view of the above discussions, this Court has no hesitation to hold that the prosecution has failed to prove that the accused pushed the victim with knowledge that such a fall would cause injury which would likely result in death. The learned Trial Court has already held that there was no intention on the part of the accused appellant to cause such injury which is likely to cause death. 32. The accused appellant in the opinion of this Court had acted in a rash manner when he had pushed the victim, who was known to have had a history of epilepsy, during the quarrel. The result of the fall had caused unforeseen injuries which led to the death of the victim. 32. The accused appellant in the opinion of this Court had acted in a rash manner when he had pushed the victim, who was known to have had a history of epilepsy, during the quarrel. The result of the fall had caused unforeseen injuries which led to the death of the victim. This Court therefore, is of the opinion that the manner in which the accused appellant pushed the victim, as a result of which the victim expired, was a rash act, which falls within the ambit of the provisions of Section 304 A of the IPC. 33. The accused is convicted accordingly. The conviction awarded by the learned Trial Court is modified accordingly. 34. The accused has already undergone the maximum sentence, which is 2(two) years prescribed under the aforesaid provision. In view of the above, no further sentencing is called for. 35. The appellant is required to be set at liberty forthwith, if not required in any other case. 36. Registry to issue release orders to the concerned authorities forthwith. 37. The Criminal Appeal (J) is disposed of. 38. Send back the Trial Court records.