JUDGMENT

A.M. Bhattacharjee, Ag. C.J. - The learned Additional Sessions Judge has convicted the accused under Section 304, Indian Penal Code and has sentenced him to 4 years rigorous imprisonment. But having heard Mr. K. Bhutia, the learned counsel for the appellant and the learned Advocate-General appearing for the State, I am satisfied that on the evidence on the record, the case would not attract the provisions of Section 304 or even Section 325.

2. The prosecution case is that the accused-appellant, a Government Jeep Driver, having been annoyed with the deceased, an employee of a road-side tea-stall, on account of the latter making some delay in serving the tea and also spilling over some tea on the body of the accused while serving the same, gave him blows and also a kick as a result of which the deceased fell down on the ground and became restless. The accused then himself took the deceased to the hospital in his jeep for necessary medical treatment, but the latter ultimately died in the hospital.

3. As is not unusual, there are some discrepancies, though not vital, as to the number and nature of blows hurled by the accused, whether one or two slaps, whether a fist-blow in ad