Conviction modified to Section 304 A IPC as prosecution failed to prove that the accused acted with intent or knowledge to cause death; incident deemed accidental.

JUDGMENT :

Rajesh Mazumdar, J.

1. This Criminal Appeal has been filed from Jail by the accused convict against the order dated 13-09-2023 passed by the Additional Sessions Judge Udalguri in Sessions Case No. 38/2022. The Guwahati High Court Legal Services Committee had appointed Ms. N. Hassan, learned Advocate to render legal assistance to the appellant herein.

2. Accordingly, this Criminal Appeal from Jail was filed on 12^th June 2024. Notices were issued to the respondent No. 2/informant on 27-05-2024 and the services were completed on 03-06-2024. The respondent No. 2 did not enter appearance.

3. We have heard the learned counsel appearing for the appellant and we have also heard the arguments put forward by the learned Additional Public Prosecutor appearing for the State.

4. The brief facts of the case as reflected from the records is that on 30-11- 2021 the informant had lodged an FIR at Harisinga Police Station stating that on 27-11-2021 at about 3:00 P.M her husband went to the tea garden line of the appellant herein and following an altercation, the appellant assaulted her husband with hands and legs. The husband of the informant suffered injuries for which he was admitted to the Tezpur Medical College and Hospital but on the night of 29-11-2021 he expired while undergoing medication. Following the information, Harisinga Police Case No. 98 of 2021 under Section 302 of the IPC was registered and investigation was taken up. Accordingly, the Investigating Officer conducted the investigation and the case was committed to the Court of the learned Sessions Judge Udalguri who transferred the case to the Court of the Additional Sessions Judge Udalguri.

5. During the course of trial, the prosecution examined as many as 10 witnesses in total including the informant, the Medical Officer and the Investigating Officer. The learned Trial Court formed three points for determination viz; (i) whether the death of the husband of the petitioner was anti-mortem and homicidal in nature, (ii) whether on 27-11-2021 the appellant had physically assaulted the husband of the informant causing his death on 29- 11-2021, and (iii) if so, whether the appellant did so with an intent to commit murder of the husband of the informant.

6. The informant was examined as PW-1 and in her statement it is reflected that she had left for work on 27-11-2021 and at 4:00 P.M when she came back to her residence, her husband told her that the accused had kicked at his belly. The deceased was taken to the Tea Garden Hospital. However, her husband was referred to the Tezpur Medical College Hospital and since it was getting dark, the husband was taken to the Medical College and Hospital on the next day. In the hospital, the husband of the petitioner died while undergoing medication.

7. In the cross-examination, the PW-1 had deposed that she did not witness the incident of physical assault and that she had deposed before the court whatever she had heard from her husband. She stated that she did not notice any external injury on the body of her husband on the day of occurrence and that her husband had stated that he had sustained injuries at his belly. The PW- 2 who had adduced his evidence stated that he had gone to the house of the accused at about 3 pm on the fateful day and prior to taking liquor, the accused had asked for payment for the liquor. The accused did not receive the money from the deceased. Since the deceased and the accused were related through their wives, the deceased had retorted in jest and when the appellant did not get the full amount asked for, the appellant pushed him and the deceased fell down. Thereafter, the accused kicked on the belly of the deceased. After the incident, the deceased went away to his residence and they all went back to their own residences. In the cross-examination of the PW-2, he has stated that he had seen the accused kicking the deceased once. He further stated that the deceased did not take liquor at the time of occurrence and he