ORDER :

Leave granted.

2. This appeal is directed against the judgment and order dated 09.09.2022 in CRA (DB) 4 of 2022, whereby the Division Bench of the High Court of Judicature at Calcutta has modified the judgment of conviction dated 22.12.2021 and order of sentence dated 23.12.2021, as passed by Additional Sessions Judge, Special Court (EC Act), Alipore in Sessions Trial Case No.02 (09) 2001 arising out of Sessions Case no. 71 (01) 2001 corresponding to Chitpore Police Station Case No. 324 of 1999, whereby the appellant was convicted of the offence under Section 302 of the INDIAN PENAL CODE , 1860 (for short, ‘IPC’) and was sentenced to suffer rigorous imprisonment for life; to pay a fine of Rs. 10,000/-; and in default, to suffer simple imprisonment for a period of six months. The High Court modified conviction to that of the offence under Section 304 Part-II IPC and reduced the substantive sentence to that of rigorous imprisonment for a period of ten years and also directed to pay a fine of Rs. 50,000/-; and in default, to suffer further rigorous imprisonment for a period of one year.

3. Shorn of unnecessary details, the prosecution case has been that on 29.09.1999, at around 23:05-23:15 hours, Narayan Chandra Roy, a Constable (informant -PW-2), after his duty hours, changed into plain clothes and boarded a Double Decker Trolly Bus bearing no. WB-04/2145 for reaching his destination at Dunlop Police Quarters from Shayambazar Crossing. After boarding, he noticed an altercation taking place on the first floor of the bus between some passengers including the appellant and Surendra Prasad Gupta (‘the deceased’/ ‘the victim’), who was also a coresident of Shaymbazaar Police Quarters. He noticed that those passengers were trying to assault the deceased so he intervened and tried to resist. However, two passengers and the appellant abused and assaulted both of them. The appellant ultimately kicked the deceased, who was standing on the steps, out of the bus with force; and as the deceased tried to catch hold of the T-shirt (‘genji’) of the informant, both of them fell down from the running bus. The deceased sustained severe head injuries and was taken to R. G. Kar Medical College and Hospital, Kolkata by the informant, where he was admitted and the informant was discharged after primary treatment.

4. The informant thereafter visited Chitpore Police Station, where his statement was recorded and PS Case No. 324 of 1999 dated 30.09.1999 was registered for offence under Section 307 /34 IPC. Thereafter, the Investigating Officer visited the hospital to record the statement of the said victim but, he remained unconscious and ultimately succumbed to his injuries at about 2:45 a.m. The post-mortem examination (by PW-11) revealed the cause of death to be head injuries. The case was then converted to the offence punishable under Sections 302 /34 IPC. In the midst of investigation, the case was transferred to Detective Department, Lalbazar. The Investigating Officer seized a lost property from the bus, which led to the identification of the appellant and ultimately to his arrest on 02.11.1999. The informant attended test identification parade and identified the appellant by touching his body and stated before the Judicial Magistrate (PW-10) that it was the appellant who pressed his neck, slapped him, threw fists and blows and pushed him to the first floor of the bus, with the help of two other passengers. He further stated that after slapping him, the appellant started assaulting the deceased, who was right behind the appellant, and when both, he and the deceased were going down the staircase