JUDGMENT :

N. KOTISWAR SINGH, J.

Heard Mr. A. Baruah, learned counsel for the appellant. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State of Assam as well as Mr. N. Ahmed, learned counsel appearing for the respondent Nos. 1 and 2.

2. The present appeal has been preferred by Dipali Devi Deka, who is the wife of the deceased-Manoj Deka, against the judgment dated 17.10.2015 passed in Sessions Case No. 62/2013 by the learned Sessions Judge, Morigaon being aggrieved by the conviction of the accused No. 2 only under section 352, IPC and not under section 302, IPC, as according to the appellant, the accused-respondent No. 2 had caused the death of her husband by causing grievous injury to him.

3. As per the records, an FIR was lodged by the informant Shri Lachit Chandra Medhi before the Morigaon Police Station on 2.7.2008 stating, inter alia, that in the evening of the previous day, i.e., 1.7.2008 at about 7.30 p.m., while the deceased-Manoj Deka, the District Secretary of the Communist Party of India (CPI) of Morigaon District, after shopping in the market was returning home by bicycle, he was stopped in front of an optical shop by the Officer in-charge, Morigaon Police Station (respondent No. 1) and the PSO (respondent No. 2) who confronted the deceased to disclose the contents of the bag and directed him to open it, who then informed them that it contained fish and some vegetables. However, the respondent No. 2 opened the bag and threw it away and trampled the deceased. Thereupon the deceased lost his consciousness and was rushed to Morigaon Civil Hospital and then subsequently referred to GNRC hospital and was admitted in the ICU.

4. Based on the aforesaid FIR, a case being Morigaon P.S. Case No. 180/2008 under section 341/427/307/34 of the IPC was registered.

5. The aforesaid Manoj Deka who was admitted to ICU died during the investigation on 4.7.2008 and accordingly, section 302, IPC was added in the FIR. Upon completion of investigation, the police submitted Final Report stating that no case was made out. However, the Magistrate did not accept the same considering the materials on record, and referred to the Sessions Court for taking cognizance of the offence under section 302, IPC. The learned Sessions Court in view of the materials took cognizance of the offence under section 302 and respondent Nos. 1 and 2 were charged for committing offence punishable under section 302, IPC.

6. In course of the trial, the prosecution examined as many as 12 witnesses including the Doctor who performed the post mortem on the deceased. The learned trial court after hearing the parties and examining the records held that the prosecution failed to prove the allegation under section 302, IPC against both the accused. However, the trial court held that the prosecution has been successful in bringing home the offence punishable under section 352, IPC against the accused-Rofikul Islam (respondent No. 2 herein), however, acquitted the accused No. 1 (respondent No. 1 herein). Considering the circumstances under which the death occurred, the learned trial court let him off after admonishing him by warning him not to do such act in future in discharging his official duty, which can cause harm to the general public.

7. Thus, both the accused were acquitted of the charge under section 302, IPC and only the accused No. 2-respondent No. 2 was convicted only under section 352, IPC and was let off after admonishing him.

8. As we proceed to examine the appeal, it may be appropriate to refer briefly to the evidence on record.

9. PW-1, Sri Nirmal Paul was a shopkeeper, who was an eye witness. He stated that the incident occurred about four/five years ago in the evening hour. On the fateful day he saw two constables checking the bags of persons who were gathered in front of a street vendor (chanawala). While the said constables wanted t