JUDGEMENT

CAV on 02.07.2024 Pronounced on : 30/07/2024 Per Ananda Sen, J.:

Today, this case has been listed for consideration of I.A.

No.4713 of 2024, preferred on behalf of the appellant, praying therein to suspend the sentence and release him on bail during pendency of this appeal. The appellant has been convicted and sentenced in connection with Sessions Trial No.843 of 2022, arising out of Airport P.S. Case No.30 of 2022 dated 28.05.2022, corresponding to G.R. Case No.2596 of 2022. He has been convicted for the offence under Section 304 part I of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.25,000/-.

2. Learned counsel for the appellant argued at length by referring to evidence of all the witnesses and exhibits, as the Trial Court Record is already available.

3. Learned A.P.P. has also argued at length referring to the evidences and the exhibits and other documents.

4. Considering the nature and length of arguments advanced by learned counsel for the parties, and the fact that the Trial Court Record is already available and this Appeal stood already admitted, this Court requested the parties to finally argue the entire appeal on merits.

5. Counsel for both the parties agreed and argued the entire appeal, challenging the impugned judgment.

6. Thus, when we have already heard the entire appeal on merits, we are not passing any order in this Interlocutory Application and the same is being disposed of as not pressed.

7. Learned counsel appearing on behalf of the appellant submits that from the evidence led on behalf of the prosecution, the appellant could not have been convicted for committing offence under Section 304 part I of the Indian Penal Code. From the evidence led, it is clear that no ingredients of Section 304 part I of the Indian Penal Code is made out.

As per the evidence, the allegation against the appellant is that he slapped the deceased and gave a fist blow. There is no evidence that the appellant had any intention of causing death, nor there is any evidence which would remotely suggest that the appellant also had an intention to cause bodily injury which is likely to cause death. The deceased was a cancer patient and died because of cancer. Admittedly, in the F.I.R., the informant did not even whisper that at any point of time when the appellant was assaulting the deceased, it was made known to the appellant that the deceased was suffering from cancer.

As per the appellant, the informant has developed the story while deposing as prosecution witness and only in her deposition as P.W.-6 has stated that she had stated before the appellant that the deceased was suffering from cancer. This is a major improvement made in the deposition only to attract the ingredients of the offence of Section 304 part I which initially was not there at the time of lodging of the F.I.R. This statement of P.W.-6 at the time of deposition is nothing but an afterthought and it should have been brushed aside by the Appellate Court.

Learned counsel for the appellant relied upon Ext.C which is the medical report of the victim issued by the Doctors of Orchid Hospital which clearly suggests that cause of death is not the assault. It is his contention that this document has not been disputed by the prosecution. Further as per the F.I.R., there is no repeated blows and no weapon was used. The inquest report does not suggest any injury, farless an injury sufficient to cause death. Learned counsel further refers to the statements of P.W.-

7 who is the Doctor who stated that injuries were not such which can aggravate cancer. So far as the genesis of the occurrence is concerned, since both the vehicles were in an open field, it cannot be said that the vehicle which the appellant was driving was on the wrong side. On the aforesaid grou