The main legal point established in the judgment is the distinction between culpable homicide under Section 299 IPC and the offence under Part II of Section 304 IPC, based on the presence of intention and knowledge in causing death.

JUDGMENT

N. Kotiswar Singh, J. - Heard Mr. S. Sahu, learned counsel for the appellant. Also heard Mr. D. Gogoi, learned counsel for respondent No.1 and Mr. M. Phukan, learned Additional Public Prosecutor, Assam.

2. A First Information Report was lodged on 17.05.2012 by one, Pranab Das (PW1), alleging that the deceased was hit on his head by a piece of brick by respondent No.1 after a quarrel and he was declared dead after being taken to Gauhati Medical College and Hospital (GMCH). Consequent upon the said complaint, necessary investigation was carried out and charge-sheet was filed against the respondent No.1.

3. Respondent No.1 was accordingly charged for committing offence under Section 302 IPC.

4. Prosecution examined as many as 8 witnesses to substantiate its case and adduced other evidences.

5. The trial Court, however, held that the prosecution failed to prove the charge beyond reasonable doubt and acquitted him of the charge under Section 302 IPC by giving benefit of doubt.

6. Being aggrieved by the aforesaid acquittal of respondent No.1, the present appeal has been filed by the widow of the deceased.

7. The prosecution case is discernible from the evidence of PW1 and PW2, who are stated to be eye witnessesof the incident, the rests, being formal witnesses and not eye witnesses.

8. Pw1, who was the complainant testified before the Court that he knew the deceased who was his tenant. He also knew the accused-respondent No.1. He stated that after hearing a commotion outside his house at about 11.30 p.m. on 16.05.2012, he called out Nayan, the deceased. Though Nayan did not give any reply, he heard opening of the gate. When PW1 came out, he saw members of the accused-person's family hurling abuses at the gateway of their house. As they were hurling abuses in filthy language, PW1 asked them to stop doing so. Then the father-in-law and brother-in-law of the accused threatened PW1. Nayan was then standing nearby. As they were abusing PW1, PW1 rushed towards them to assault them. Then the accused said that PW1 is their neighbour and told them not to misbehave with him. At that time, thinking that PW1 had assaulted father-in-law of the accused, the wife of the accused came to assault PW1, when the deceased, Nayan resisted her. They also rebuked Nayan. Subsequently, PW1 managed to persuade all to go back. Thereafter, as Nayan and PW1 were returning home, the accused hurled a piece of brick towards them. The brick hit Nayan on the head and he sustained injury. Thereafter, he was taken to hospital where the doctor declared him dead. PW1 also stated that the quarrel broke out all of a sudden and accused-respondent No.1 did not have any grudge against Nayan from before.

9. In his cross-examination, PW1 stated that while returning home after the altercations and commotions, Nayan was proceeding ahead and PW1 was following him and there were lights at the campus at the time of the incident. PW1 also stated that accused hit Nayan from behind and on being hit, Nayanfell down and he tried to save Nayan. PW1 denied the suggestion of the defence that he did not see as to who had assaulted Nayan. PW1 stated that as Nayan reached the front of their gate, PW1's wife shouted "Marile, marile" (is being hit, is being hit). Thereupon, PW1 looked back and saw the accused hurling a piece of brick. He also stated in the cross-examination that he did not say before the police in his statement that he had looked back when his wife shouted, as the police did not ask him in detail about the incident. PW1 denied having given false evidence and also denied that the accused did not assault Nayan with a piece of brick, which was shown to him.

10. As far as PW2, Smt. Anita Das, the wife of PW1 is concerned, she also stated in similar lines as that of PW1. She stated that on hearing the commotion outside, her husband called Nayan and went outside. Nayan had already gone out. After a short while, the commotion subsided. She stated that while her husband was returning wit