In cases of culpable homicide not amounting to murder under Section 304 IPC, the prosecution must prove that the accused had the intention to cause death or the knowledge that the act was likely to cause death.

JUDGMENT :

Subhendu Samanta, J.

1. The instant appeal is preferred against the judgment of conviction and sentence dated 06.02.1984 passed by the Additional Sessions Judge, Medinipur in Sessions trial No. XXVIII of November 1983 convicting the present appellant to sentence rigorous imprisonment for 07 years is being found guilty u/s 304(II) of IPC.

2. The brief fact of the prosecution case is that the deceased Raghunath was the father of the present appellant, the complainant (PW 1) is his step-mother and PW 4 is his stepsister. On 25th Jaistha 1384 BS, corresponding to 12.05.1982 at about 6/7 p.m. In the evening the accused attacked Raghunath with Lathi, Mugur and Pirah and stuck him with those objects causing serious injuries on his present as Raghunath refuses to transfer his property to the accused as demanded by him. PW 1 tried to resist the accused but the accused also assaulted her. At the time PW 4 was present there, they raised alarm, some of the neighbours came there on hearing the said alarm but the appellant fled away with the Mugur in his hand. The neighbours came to the P.O, thereafter Raghunath was first taken to Debra Hospital and therefrom to Medinipur Sadar Hospital wherein Raghunath succumbed injuries on the next day. One UD case being no. 79 of 1982 dated on 13.05.1982 in connection with the death of the Raghunath was started. The de-facto complainant, due to pain upon all over her body could not go to the P.S immediately after the incident, on 15.05.1982 at 18:15 Hrs. she went to the P.S and lodged the FIR before the Debra P.S being case no. 8 dated 15.05.1982.

3. After investigation, police submitted charge-sheet u/s 304 Part 1 IPC against the present appellant. The appellant sent up for trial. The appellant pleaded not guilty and claimed to be tried.

4. During the trial the prosecution has produced 09 witnesses but the defence has examined none. On hearing the evidences and after perusing the materials on record the Learned Sessions judge, has passed the impugned order of conviction and sentence against the present appellant finding him guilty for commission of an offence punishable u/s 304 Part 2 of IPC.

5. Hence this appeal.

6. Learned Advocate for the appellant submitted before this court that the impugned judgment of conviction suffered material irregularities. The Learned Sessions Judge has failed to appreciate the facts and circumstances of this case and came to an erroneous finding. The PWs contained material contradictions between each other and the conviction on the basis of such contradictory depositions cannot be sustained. The doctor of the primary health centre was not examined where the deceased was first admitted after such alleged assault. There are inordinate delay in lodging the FIR and the prosecution has no sufficient explanation to that effect. Thus the case of prosecution cannot be said to be proved beyond reasonable doubt. The PW 1 has stated the wrong month in her deposition thus her deposition cannot be believed; the PW 1 has stated the names of the villagers and the neighbours who was assembled at the time of alleged assault by the appellant but none of them was examined by the prosecution or no villagers or neighbours supported the prosecution case. At this juncture, the order of conviction passed by the Learned Sessions Judge is erroneous. The delay in lodging FIR has purposefully developed the case by the PW 1 herself. There is no indication of ‘Mugur’ in the FIR but subsequently during the evidence of PW 1 she stated that the accused /appellant has assaulted the deceased with the ‘Mugur’. Such type of development had occurred purposefully only to falsely implicate the present appellant. It is the case of the prosecution that the appellant has assaulted PW 1 at the time of alleged incident, but there no medical certificate or prescription to justify the said case. The PW 1 has stated herself to be the sole eye witness of the incident but her statement was severally contradicted by o