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IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Ananya Bandyopadhyay

C.R.A. 326 of 2013

Bhabani Barman

-Vs-

The State of West Bengal

For the Appellant : Mrs. Suman Sehanabis (Mondal)

For the State : Mr. Avishek Sinha

Judgment on : 08.06.2026

Ananya Bandyopadhyay, J.:-

1. This appeal is directed against the judgment and order dated 21.01.2013

passed by the Learned Additional Session Judge, 2

nd

Fast Track Court,

Cooch Behar in Sessions Trial No.3(03)2008 arising out of Sessions Case

No.17 of 2008, convicting the appellant for commission of alleged offence

punishable under Section 304 (Part-II) of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for 5 years and also to pay fine of

Rs.5,000/- in default to suffer simple imprisonment for another 6 months

more.

2. The prosecution case precisely traces its genesis to a discord that allegedly

erupted on 20

th

May 2007 at about 7:00 a.m. between the appellant and the

members of the family of the de facto complainant. The occurrence was not

portrayed as an isolated episode but as the culmination of an atmosphere of

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hostility. According to the prosecution, during the altercation the appellant

openly threatened the de facto complainant with grave consequences,

thereby sowing the seeds of a confrontation that was soon to assume a tragic

dimension. On the following morning, namely 21

st

May 2007 at about 7:00

a.m., Ramchandra Barman, the youngest son of the de facto complainant

Dhiren Barman, was proceeding towards the field for grazing cattle. At that

juncture, the appellant allegedly intercepted him and dealt a forceful blow on

his head with a bamboo stick. The assault, according to the prosecution,

was sudden and directed at a vital part of the body, resulting in a grievous

head injury.

3. The cries of the injured Ramchandra Barman reportedly drew the attention

of his father and a neighbouring resident, who hastened to the place of

occurrence. By the time they arrived, the assailant had allegedly fled from

the scene. The injured victim was thereafter removed to M.J.N. Hospital,

Cooch Behar, where initial medical assistance was provided. Owing to the

seriousness of the cranial injury, he was referred to the North Bengal

Medical College and Hospital, Siliguri, for specialised treatment. While being

transported to Siliguri, and before reaching the referral hospital, the

condition of the injured deteriorated irreversibly. Near Dhupguri, he

succumbed to the injury sustained in the incident. His body was thereafter

taken back to M.J.N. Hospital, where he was formally declared dead by the

attending medical officer.

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4. Based on the aforesaid complaint, Kotwali Police Station Case No.235/07

dated 22.05.2007 under Section 304 of the Indian Penal Code was initiated

for investigation.

5. Upon conclusion of the investigation, the Investigating Agency submitted a

charge-sheet against the appellant under Section 304 of the Indian Penal

Code.

6. Charge was framed against the appellant to whom he pleaded not guilty and

claimed to be tried.

7. In order to prove its case, the prosecution examined as many as 19

witnesses and examined certain documents.

8. The Learned Counsel appearing for the appellant assailed the judgment of

conviction contending that the prosecution evidence, fell short of standard of

proof required in a criminal trial and left substantial doubt regarding the

manner of occurrence and the complicity of the appellant.

9. At the forefront of the challenge, it was argued that the prosecution case

rests almost entirely upon the testimonies of PW-1 Dhiren Barman, PW-2

Arati Barman, PW-3 Narayan Barman and PW-4 Bijoy Barman, all of whom

belong to the immediate family of the deceased. According to the appellant,

the evidence of these witnesses lacks the degree of consistency and mutual

corroboration necessary to sustain a conviction for an offence punishable

under Section 304 Part II of the Indian Penal Code. It was submitted that the

conviction has been founded upon evidence which is neither wholly reliable

nor adequately supported by independent testimony, thereby rendering the

prosecution version susceptible to serious doubt.

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10. The Learned Counsel representing the appellant further contended that the

essential ingredients constituting the offence under Section 304 Part II of the

Indian Penal Code have not been established. It was urged that the

prosecution failed to prove beyond reasonable doubt that the appellant had

either the requisite knowledge contemplated under the provision or that the

alleged act was committed in circumstances attracting criminal liability of

the nature found by the prosecution. The evidence, according to the defence,

does not conclusively demonstrate that the appellant caused the death of the

deceased with the degree of knowledge necessary to attract the penal

consequences of the said provision.

11. A substantial emphasis was laid upon the delay in lodging the First

Information Report. Learned counsel submitted that no satisfactory or

convincing explanation emerges from the prosecution evidence regarding the

interval between the occurrence and the registration of the case. Such delay,

it was argued, assumes significance in a prosecution resting principally

upon oral testimony and creates a legitimate possibility of embellishment,

consultation and reconstruction of events.

12. The Learned Counsel for the appellant also questioned the prosecution's

attempt to weave together a chain of circumstances linking the appellant

with the fatal injury. It was argued that the evidence on record does not form

a coherent and unbroken narrative and that material contradictions emerge

from the depositions of the principal witnesses. According to the defence,

these discrepancies strike at the root of the prosecution case and render

unsafe any conclusion regarding the appellant's guilt.

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13. Particular attention was drawn to the evidence of PW-1, the father of the

deceased. The Learned Counsel submitted that while PW-1 claimed to have

witnessed the assault upon his son Ramchandra Barman and narrated the

presence of several family members and neighbours at the scene, his

testimony does not receive consistent support from the other witnesses. The

defence maintained that the version advanced by PW-1 suffers from

infirmities which diminish its evidentiary value.

14. The testimony of PW-2 Arati Barman, the mother of the deceased, was also

subjected to criticism. Learned counsel pointed out that during cross-

examination she admitted that she did not remember whether she had

narrated to the authorities the alleged incident of the preceding day

concerning the dispute over the cow and further acknowledged that she had

not informed the police regarding that earlier occurrence. According to the

appellant, such omissions assume significance because the prosecution

sought to project the previous day's altercation as the genesis of the fatal

incident.

15. Serious reliance was placed upon the discrepancies between the evidence of

PW-3 Narayan Barman and his earlier statement recorded under Section 164

of the Code of Criminal Procedure. Learned counsel submitted that in his

deposition before the Court, PW-3 stated that upon hearing cries he came

out and saw the appellant repeatedly assaulting Ramchandra Barman with a

bamboo stick. However, in his statement under Section 164 of the Code of

Criminal Procedure, he had narrated a materially different sequence of

events, namely that his elder brother Bijoy was first attacked and that

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Ramchandra sustained injuries while intervening in an attempt to rescue

him. These divergent versions, according to the appellant, create a

substantial doubt regarding the true genesis of the occurrence.

16. The defence highlighted similar inconsistencies in the evidence of PW-4 Bijoy

Barman. Reference was made to his statement recorded under Section 164

of the Code of Criminal Procedure wherein he had allegedly stated that he

was first assaulted by the appellant while proceeding to work and that

Ramchandra came forward to save him. In contrast, his testimony before the

Court projected a different narrative in which the deceased was directly

attacked while proceeding towards the grazing field. The appellant submitted

that these irreconcilable versions materially affect the credibility of the

prosecution account and raise doubt regarding the actual sequence of

events.

17. The Learned Counsel representing the appellant further emphasised that

PW-2's statement under Section 164 of the Code of Criminal Procedure did

not support the version advanced by PW-3 and PW-4 regarding the alleged

initial assault upon Bijoy Barman and the subsequent intervention by the

deceased. According to learned counsel, the lack of harmony among the

statements of the principal witnesses demonstrates that the prosecution

story underwent significant variation at different stages of the proceedings.

18. Another important limb of the defence argument concerned the absence of

independent witnesses. It was submitted that although several persons from

the locality were allegedly present or had assembled at the place of

occurrence, no reliable independent witness was examined to corroborate

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the prosecution version. The case thus remained dependent upon the

testimony of close relatives of the deceased whose accounts, according to the

appellant, were themselves beset with inconsistencies.

19. Learned counsel also relied upon the medical evidence, particularly the

testimony of PW-10, the attending doctor. Attention was invited to the

doctor's statement in cross-examination that the nature of injury found on

the deceased could also be caused by a fall upon a hard surface if the impact

occurred on the head. It was argued that this medical opinion introduces an

alternative possibility regarding the causation of the injury and consequently

weakens the certainty sought to be attributed to the prosecution case.

20. On the cumulative assessment of the oral and documentary evidence,

learned counsel submitted that the prosecution has not succeeded in

establishing an unbroken and trustworthy chain of facts leading irresistibly

to the guilt of the appellant. The contradictions among the principal

witnesses, the divergence between their courtroom testimony and their

statements under Section 164 of the Code of Criminal Procedure, the

absence of independent corroboration, the medical evidence suggesting an

alternative cause of injury, and the delay in lodging the First Information

Report were all pressed into service to contend that the prosecution has

failed to prove its case beyond reasonable doubt.

21. It was, therefore, urged that the conviction and sentence imposed upon the

appellant do not rest upon evidence of such quality and certainty as the

criminal law demands and that the appellant is entitled to the benefit of

doubt and the consequential relief available in law.

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22. The Learned Counsel appearing for the State stoutly defended the conviction

and sentence, contending that the prosecution evidence, viewed in its

entirety, presents a coherent, cogent and compelling account of the

occurrence, leaving no reasonable doubt regarding the identity of the

assailant, the manner of assault, and the causal connection between the

injuries inflicted and the death of the victim.

23. At the very threshold, it was submitted that the name of the appellant

surfaced with remarkable consistency from the earliest stage of the

prosecution case. The First Information Report, the inquest proceedings, and

the medical history furnished to the attending doctor uniformly attributed

the assault to the appellant, namely Bhabani Barman, the paternal uncle of

the deceased. According to the State, these contemporaneous documents,

prepared at different stages and for distinct purposes, furnish intrinsic

assurance regarding the authenticity of the prosecution narrative and

demonstrate that the appellant was identified as the assailant from the

inception of the criminal process.

24. The Learned Counsel emphasised that the prosecution case consistently

portrays a singular act of assault directed at a vital part of the body. The

evidence discloses that the appellant followed the deceased and struck him

on the head with a bamboo- lathi, causing a severe cranial injury which

ultimately proved fatal. The head being an exceedingly vulnerable region of

the human body, the nature of the assault itself lends assurance to the

prosecution version and furnishes the requisite nexus between the act

complained of and the fatal consequence that followed.

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25. Particular reliance was placed upon the recovery of the offending weapon. It

was submitted that the bamboo stick used in the commission of the offence

was recovered from the residence of the appellant at his own instance. The

seizure, according to the State, was not merely a formal investigative step

but a significant incriminating circumstance connecting the appellant with

the occurrence. Learned counsel further pointed out that even PW-9, though

declared hostile, admitted the factum of seizure and was a signatory to the

seizure list. Such admission by a witness not wholly supporting the

prosecution was urged as a circumstance lending additional assurance to

the genuineness of the recovery.

26. The State further contended that the medical evidence stands in complete

harmony with the ocular account. The post-mortem examination revealed a

fatal head injury situated in the parietal region, and the autopsy surgeon

unequivocally opined that the death resulted from such injury. According to

learned counsel, the medical findings neither dilute nor contradict the

prosecution version; rather, they reinforce the testimony of the eyewitnesses

regarding the situs of the blow, the nature of the weapon employed, and the

fatal outcome of the assault.

27. Considerable emphasis was laid upon the evidence of PW-1 Dhiren Barman,

PW-2 Arati Barman, PW-3 Narayan Barman, and PW-4 Bijoy Barman. The

Learned Counsel submitted that these witnesses consistently narrated the

essential features of the occurrence and furnished a substantially uniform

account regarding the identity of the assailant, the weapon used, and the

infliction of the head injury upon the deceased. The State argued that their

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testimonies mutually reinforce one another on all material particulars and

therefore constitute a reliable evidentiary foundation for sustaining the

conviction.

28. Addressing the criticism that these witnesses are closely related to the

deceased, learned counsel submitted that relationship by itself neither

disqualifies a witness nor renders testimony inherently suspect. The law, it

was argued, recognises that evidence must be assessed on the touchstone of

truthfulness and intrinsic worth rather than on the basis of familial

association. Where the evidence of related witnesses remains natural,

consistent and trustworthy, there exists no legal principle warranting its

exclusion merely because such witnesses share kinship with the victim.

29. The State further submitted that the evidence of the local witnesses,

including those who did not wholly support the prosecution, nevertheless

corroborates significant aspects of the occurrence. Even the hostile

witnesses admitted that the deceased had sustained grievous injuries. Their

testimony, according to learned counsel, demonstrates the existence of a

violent incident resulting in serious bodily harm and thereby lends indirect

support to the prosecution narrative.

30. It was additionally contended that the presence of PW-1, PW-2, PW-3 and

PW-4 at or near the place of occurrence remains firmly established. Their

presence immediately after the assault and their participation in the efforts

to rescue and transport the injured victim to the hospital constitute

circumstances that naturally explain their knowledge of the incident. The

State argued that nothing has emerged from the record to suggest that these

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witnesses were falsely implicating the appellant while suppressing the

identity of the actual assailant.

31. The Learned Counsel further submitted that the alleged discrepancies

highlighted by the defence pertain only to peripheral details and do not

touch the core of the prosecution case. According to the State, minor

variations are a natural consequence of individual perception and the

passage of time and, far from undermining credibility, often indicate that the

witnesses were recounting events from their own recollection rather than

rehearsing a fabricated version.

32. On a cumulative assessment of the documentary evidence, the seizure of the

weapon, the medical findings, the post-mortem report, the testimony of the

eyewitnesses, and the circumstances surrounding the occurrence, learned

counsel contended that the prosecution has succeeded in establishing an

unbroken chain of incriminating facts pointing unmistakably towards the

guilt of the appellant. The evidence, according to the State, proves beyond

reasonable doubt that the appellant assaulted Ramchandra Barman with a

bamboo-lathi on the head, resulting in injuries which culminated in his

death.

33. It was, therefore, urged that the prosecution has discharged its burden in

accordance with law and that the conviction and sentence imposed upon the

appellant under Section 304 Part II of the Indian Penal Code rest upon a firm

evidentiary foundation warranting no interference.

34. The circumspection of evidence of the prosecution witnesses revealed as

follows:-

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i. PW-1, Dhiren Barman, had been the de facto complainant and the

bereaved father of the deceased Ramchandra Barman. His testimony

unfolded the prosecution narrative from its inception and traces the

events that culminated in the death of his son. He deposed that on

5th Jaistha, corresponding to 20

th

May 2007, an altercation arose

between his family and the appellant, during which the appellant

allegedly threatened that he would finish them. According to him, on

the following morning, namely 6th Jaistha at about 7:00 a.m., his son

Ramchandra Barman was proceeding towards the field for grazing

cattle. At that time PW-1 was present in the courtyard of his house

while his wife remained indoors. He claimed that the appellant

suddenly appeared carrying a bamboo stick and struck Ramchandra

on the head. The victim immediately fell to the ground and raised

cries of distress.

ii. PW-1 stated that upon hearing the alarm, he, along with his sons

Narayan and Dejoy, his wife Arati Barman, and neighbouring

villagers including Nirmal, Dhananjay, Yunus and Satyen, rushed to

the place of occurrence. The injured Ramchandra was removed to

M.J.N. Hospital, Cooch Behar. Owing to the seriousness of the head

injury, he was referred to Siliguri Medical College. While being

transported in an ambulance, the victim succumbed to his injuries

near Dhupguri. The body was thereafter brought back to M.J.N.

Hospital, where the attending doctor declared him dead.

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iii. PW-1 further deposed that he subsequently lodged the written

complaint at the police station. The complaint was scribed by PW-13

at his dictation, read over to him and, finding it correctly recorded, he

affixed his left thumb impression thereon. He also identified the

bamboo stick allegedly used in the assault, marked as Material

Exhibit-I. He further participated in the inquest proceedings

conducted by the police.

iv. During cross-examination, PW-1 disclosed that there was no

boundary dispute between the families and that the existing discord

concerned agricultural matters relating to jute and paddy. He

acknowledged the existence of several neighbouring houses in the

vicinity and admitted that he had not informed the police about the

threat allegedly extended on the previous day, although he claimed to

have narrated the same to certain villagers. He also admitted that no

written complaint had been lodged before either the police authorities

or the Gram Panchayat concerning the earlier dispute. He stated that

immediately after the occurrence he proceeded with his injured son to

the hospital and thereafter towards Siliguri Medical College, returning

to M.J.N. Hospital only after the death of Ramchandra. According to

him, the written complaint was lodged on the following day.

v. PW-2, Arati Barman, the mother of the deceased, substantially

supported the version narrated by PW-1. She stated that on 5th

Jaistha there had been a quarrel concerning cattle, during which the

appellant threatened the family and declared that on the following

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day he would teach them a lesson. On the next morning, while

Ramchandra was proceeding towards the grazing field after taking

the cattle out from the cowshed, the appellant allegedly approached

from behind and struck him on the head with a bamboo stick.

vi. PW-2 deposed that she was inside her house at the relevant time.

Upon hearing the cries of her son she rushed to the spot

accompanied by her husband, her two sons and neighbouring

residents including Dhananjay, Nirmal and Yunus Mia. She found

Ramchandra lying injured with a grievous head wound. According to

her, she took the injured boy on her lap and, together with Narayan

Barman, transported him to M.J.N. Hospital. The attending doctor

referred him to Siliguri Medical College due to the seriousness of his

condition. During the journey near Dhupguri, Ramchandra expired.

Thereafter the body was brought back to M.J.N. Hospital where he

was formally declared dead.

vii. PW-2 identified the bamboo stick marked as Material Exhibit-I and

stated that she subsequently made a statement before the Magistrate

narrating the facts of the occurrence.

viii. In cross-examination, PW-2 conceded that she did not recollect

whether she had informed the authorities regarding the alleged

quarrel of the previous day concerning the cow. She further admitted

that she had not stated before the police about the incident of 5th

Jaistha. She also disclosed that the field was situated beside a road

and that several houses surrounded their residence.

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ix. PW-3, Narayan Barman, another son of PW-1 and brother of the

deceased, testified as an eyewitness to the occurrence. He deposed

that on 20

th

May 2007 the appellant had threatened the family. On

the following morning Ramchandra left the house with the cattle for

grazing. PW-3 stated that he was inside the house when he heard a

loud scream. On coming out, he allegedly saw the appellant

repeatedly assaulting Ramchandra on the head with a bamboo stick.

x. According to PW-3, several neighbours, including Satyen Das, Yunus

Mia, Dhananjay Darman and Nirmal Darman, arrived at the place of

occurrence. The injured victim was then taken to M.J.N. Hospital in a

motor vehicle. By that time Ramchandra had become senseless and

had sustained visible swelling on the head. As his condition

deteriorated, he was referred to Siliguri Medical College. However,

during transit near Dhupguri, he succumbed to his injuries. The

body was subsequently brought back to M.J.N. Hospital.

xi. PW-3 identified the seized bamboo stick and further stated that the

police recovered the same from the cowshed of the appellant under a

seizure list. He also deposed that he had given a statement before the

Magistrate.

xii. In cross-examination, PW-3 stated that he had narrated the incident

before the Magistrate. He denied that his elder brother Bijoy had

sustained injuries in the occurrence and stated that nobody

assaulted Bijoy. He admitted that no complaint had been lodged

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regarding the incident of 20

th

May 2007 and that the family disclosed

the previous day's incident only to villagers on the following day.

xiii. PW-4, Bijoy Barman, another brother of the deceased, also supported

the prosecution case. He deposed that there existed strained relations

between the family and the appellant and that the appellant had

threatened them on 5th Jaistha. On the morning of 6th Jaistha, while

he himself was proceeding towards his work and Ramchandra was

taking the cattle towards the field, the appellant suddenly emerged

from behind and struck Ramchandra on the head with a bamboo

stick.

xiv. PW-4 stated that the victim cried out in pain and that, upon hearing

the alarm, his parents, his brother and neighbouring residents

including Dhananjay, Nirmal and Yunus Mia reached the spot.

Ramchandra was thereafter taken to M.J.N. Hospital and

subsequently referred to Siliguri Medical College. During transit near

Dhupguri, he died. The witness identified the bamboo stick marked

as Material Exhibit-I and stated that the police had seized it from a

place near the appellant's cowshed. He also affirmed that he had

made a statement before the Magistrate, which was reduced into

writing.

xv. During cross-examination, PW-4 admitted that he had not informed

the Magistrate regarding the alleged threat extended on 5th Jaistha.

He also acknowledged that no diary or written complaint had been

lodged concerning the previous day's occurrence and that no written

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intimation had been furnished to the Panchayat or any authority

regarding the earlier dispute.

xvi. PW-5 was a neighbouring resident acquainted with both the

complainant and the appellant. He deposed that a family dispute

existed between PW-1 and the appellant. On hearing cries in the

morning, he rushed to the spot and found the victim lying on the

road. He noticed the presence of the victim's parents, brothers and

other villagers. According to him, water was poured on the victim's

head and thereafter he was taken to the hospital. PW-5 later learnt

that the victim had been referred to Siliguri Medical College and had

died on the way.

xvii. In cross-examination, PW-5 admitted that he had not stated before

the police that he had actually seen the appellant assaulting the

victim simultaneously when he reached the spot. His evidence thus

primarily establishes his arrival immediately after the occurrence and

the condition in which he found the victim.

xviii. PW-6 testified he knew both PW-1 and the appellant, who were

brothers. He deposed he came to know that Ramchandra Barman

had died but could not independently state the exact cause of death.

During cross-examination, however, he stated that upon hearing of a

sudden commotion he went near the house of Dhiren Barman and

found the victim lying on the ground while family members were

crying. Upon enquiry he learnt that the appellant had struck the

victim on the head with a bamboo stick, causing him to fall.

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xix. PW-6 further stated that there had been a long-standing domestic

dispute between the appellant and PW-1. According to him,

Ramchandra was first taken to M.J.N. Hospital and thereafter

towards North Bengal Medical College, but expired on the way. His

testimony is thus largely derivative in nature and based upon what

he learnt from others immediately after the occurrence.

xx. PW-7 deposed he knew PW-1 and was aware of the incident leading

to the death of the victim. He stated that after hearing a hue and cry

he reached the spot and saw the appellant beating the younger son of

Dhiren Barman with a bamboo stick. According to him, the victim fell

to the ground and family members thereafter arrived. He further

stated that the victim sustained blows on the head and was

subsequently removed to the hospital.

xxi. In cross-examination, PW-7 admitted certain omissions in his earlier

statement to the police, particularly regarding his assertion that he

had witnessed the assault after hearing the cries. Nevertheless, he

maintained that the appellant had assaulted the victim with a

bamboo stick and had fled when villagers gathered.

xxii. PW-8 was a neighbour whose house stood adjacent to the residences

of both PW-1 and the appellant. He testified that relations between

the two brothers were strained owing to an ongoing family dispute.

He stated that the son of PW-1 was killed, but candidly admitted that

he had not witnessed the occurrence with his own eyes.

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xxiii. During cross-examination, PW-8 was confronted with portions of his

police statement wherein he had allegedly stated that upon hearing

cries he rushed to the place and found the victim lying on the ground

while the appellant was beating him with a bamboo piece. He also

allegedly stated that the appellant fled towards his house carrying the

bamboo. PW-8 acknowledged that he had been examined by the

Investigating Officer but maintained that he had not personally

witnessed the occurrence.

xxiv. His testimony, therefore, principally establishes the background of

family discord and the circumstances immediately surrounding the

aftermath of the incident rather than the actual assault itself.

xxv. PW-9 was a co-villager acquainted with both PW-1 and the appellant.

His evidence did not advance the prosecution case on the actual

occurrence and remained confined principally to the aspect of seizure

and the existence of prior discord.

xxvi. He deposed that he had learnt from co-villagers namely, Anil Barman

and Sahaj Ali Mia, that a dispute existed between PW-1 and the

appellant. According to him, the victim lost his life in the course of

the hostility prevailing between the two families. He candidly

admitted that he could not state who had actually assaulted the

victim.

xxvii. The witness further stated that the victim expired at M.J.N. Hospital,

Cooch Behar. Thereafter, he accompanied police personnel to the

village where, in his presence, a bamboo-lathi was seized from the

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house of the appellant. The seizure list was proved and marked as

Exhibit-2/2, and he identified the seized bamboo stick marked as

Material Exhibit-I.

xxviii. During cross-examination, PW-9 acknowledged that bamboo sticks

were commonly available in almost every household in the village, a

circumstance which bears relevance while evaluating the evidentiary

value of the alleged recovery.

xxix. PW-10 was the Medical Officer who conducted the post-mortem

examination over the dead body of Ramchandra Barman on

22.05.2007 at M.J.N. Hospital, Cooch Behar in connection with

Kotwali P.S. U.D. Case No.151/07. The witness deposed that upon

examination he found the scalp to be externally intact. However,

beneath the scalp there existed a hematoma in the right parietal

region. He further noticed haemorrhage within the brain substance

situated in the right hemisphere in the parasagittal area. In his

considered medical opinion, death resulted from the head injury

situated in the right parietal region, the injury being ante-mortem

and homicidal in character. He proved the post-mortem report

prepared and signed by him, which was marked as Exhibit-4.

xxx. PW-10 further opined that such an injury could be caused by an

impact from a hard substance upon the head.

xxxi. In cross-examination, he conceded that a similar injury might also be

occasioned if a person were to fall upon a hard surface and sustain

impact on the head. This admission furnished a possible alternative

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mechanism of injury, though the primary opinion regarding the cause

of death remained unchanged.

xxxii. PW-11 was attached to Kotwali Police Station as Constable No.185.

He stated that on 22.05.2007, acting under official directions, he

transported the dead body of Ramchandra Barman from M.J.N.

Hospital to the morgue. He identified the corpse before the doctor

conducting the post-mortem examination. The dead body challan

under which the corpse was transported was proved and marked as

Exhibit-5. His evidence is purely formal in nature and pertains to the

chain of custody of the dead body.

xxxiii. PW-12 was attached to Kotwali Police Station as an Assistant Sub-

Inspector. He deposed that upon receipt of information from the

Superintendent of M.J.N. Hospital regarding the unnatural death of

Ramchandra Barman, and pursuant to the direction of the Officer-in-

Charge, he proceeded to the hospital on 22.05.2007.

xxxiv. The witness conducted the inquest (Surathal) over the dead body of

the deceased in the presence of relatives and prepared the Surathal

Report. He proved the said report, which was marked as Exhibit-6.

xxxv. He further stated that U.D. Case No.151/07 was registered upon

receipt of the information concerning the death and that the dead

body was thereafter forwarded to the morgue through Constable

Narsingh Bhutia under a proper challan marked Exhibit-5/1.

xxxvi. During cross-examination, PW-12 stated that although he mentioned

the U.D. Case number in the Surathal Report, the record produced

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before the Court did not contain any reference as to who actually

initiated the U.D. case. He reiterated that he had gone to the hospital

pursuant to instructions received from the Officer-in-Charge.

xxxvii. PW-13 was an advocate's clerk. He deposed at the dictation of Dhiren

Barman (PW-1), he wrote the written complaint. After reducing the

complaint into writing, he read it over to the complainant who, upon

finding it correctly recorded, appended his signature thereto. The

written complaint was proved and marked as Exhibit-1/1.

xxxviii. In cross-examination, PW-13 admitted that the complaint did not

contain any note indicating the place or time at which it was written.

He further stated that prior to the incident he did not know Dhiren

Barman personally and was unaware of the educational qualifications

of the neighbouring villagers. His evidence lends formal proof to the

authorship and execution of the First Information Report.

xxxix. PW-14 was a van puller by occupation. He deposed that on

22.05.2007 he transported a dead body to the morgue under

instructions issued by Kotwali Police Station. He further stated that

police seized the wearing apparel of the deceased in his presence and

prepared a seizure list on which he affixed his left thumb impression.

xl. During cross-examination, he candidly admitted that he could not

identify the person whose dead body had been transported in his van

and that he had merely acted in compliance with police directions.

His testimony is thus confined to the formal aspects of transportation

and seizures.

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xli. PW-15 was a Medical Officer posted at M.J.N. Hospital, Cooch Behar

on the date of occurrence. He deposed that on 21.05.2007,

Ramchandra Barman was admitted to the hospital and was brought

by Arati Barman. The patient was admitted in the Surgical Ward

under his supervision.

xlii. Upon examination, he found that Ramchandra had sustained a head

injury and was in a semi-conscious condition. The patient's condition

was grave and deteriorating. He advised an immediate C.T. Scan and

continued treatment. The C.T. Scan report revealed acute subdural

hematoma with mass effect, indicating a serious intracranial injury.

In view of the critical condition, he referred the patient to North

Bengal Medical College and Hospital for advanced treatment. The

witness proved the bed-head ticket and treatment sheets marked as

Exhibit-8. He specifically stated that he had recorded that the patient

was in a very serious condition and had informed the patient's

relatives accordingly.

xliii. During cross-examination, PW-15 clarified that the documents

produced were xerox copies of the bed-head ticket. He admitted the

patient had initially been examined by the Emergency Medical Officer

and not by him. He further stated that the treatment records did not

contain the names of the persons accompanying the patient, nor did

they contain any recorded history regarding the cause of injury. The

patient had been admitted at approximately 8:57 a.m. on 21.05.2007.

Although he referred the patient to North Bengal Medical College, the

24

exact time of referral was not recorded. His evidence constitutes a

crucial medical link demonstrating the severity of the cranial injury

immediately after the occurrence.

xliv. PW-16 was an employee attached to the Record Room of M.J.N.

Hospital. He deposed that he was duly authorised by the

Superintendent of the Hospital to produce official records relating to

Ramchandra Barman, including the Admission Register, injury report

and bed-head ticket. He produced the Admission Register wherein the

name of Ramchandra Barman appeared against Serial No.11633

dated 21.05.2007. The register was marked as Exhibit-7. According

to him, all such documents were maintained in the ordinary course of

hospital business and preserved in the record room in accordance

with hospital rules. His testimony served to formally prove the

hospital records.

xlv. PW-17 was serving as a Medical Officer in the Emergency Ward of

M.J.N. Hospital. He deposed that on 22.05.2007, while on emergency

duty, Ramchandra Barman was brought before him. Upon

examination, he found the patient to have been brought dead at

about 3:30 a.m. The accompanying persons informed him that the

patient had sustained head injuries on 21.05.2007 at about 7:30

a.m. The witness prepared the injury report in his own handwriting

and proved the same, which was marked as Exhibit-9. His evidence

establishes the fact that the patient was brought back to the hospital

25

in a dead condition after the unsuccessful attempt to transfer him for

advanced treatment.

xlvi. PW-18 was the Emergency Medical Officer on duty at M.J.N. Hospital

on 21.05.2007, the day of occurrence. He deposed that Ramchandra

Barman was brought to the Emergency Room with a head injury.

Recognising the seriousness of the condition, he immediately advised

admission to the Surgical Ward and prescribed preliminary

treatment. The Emergency Ticket prepared and signed by him was

proved and marked as Exhibit-10.

xlvii. During cross-examination, PW-18 stated that he had nearly two

decades of medical service. He clarified that preliminary first aid was

administered in the Emergency Ward. He further admitted that the

Emergency Ticket did not mention the precise dimensions of the

injury. His testimony furnishes the earliest medical record relating to

the victim after the occurrence. PW-19 was the Investigating Officer

and constituted the principal official witness of the prosecution. He

deposed that on 22.05.2007, while attached to Kotwali Police Station,

he received the written complaint lodged by Dhiren Barman. Acting

upon the endorsement of the Officer-in-Charge, he registered Kotwali

P.S. Case No.235/07 under Section 304 IPC. He proved the

endorsement on the complaint, marked Exhibit-1/2, and the formal

First Information Report, marked Exhibit-11. The witness stated that

he visited the place of occurrence, prepared a rough sketch map with

index marked collectively as Exhibit-12, examined witnesses under

26

Section 161 Cr.P.C., and undertook the investigation. According to

him, acting on identification by eyewitnesses Narayan Barman, Bijoy

Barman and the complainant, he seized the alleged weapon of

offence, namely a bamboo stick, under a seizure list dated

22.05.2007 marked Exhibit-2. The seized bamboo was identified as

Material Exhibit-I. He also arrested the appellant and forwarded him

before the Court.

xlviii. PW-19 further deposed that he recorded statements of witnesses and

collected statements recorded under Section 164 of the Code of

Criminal Procedure. He obtained the injury report, inquest report,

dead body challan, post-mortem report and other medical

documents. After completion of investigation, he submitted charge-

sheet against the appellant under Section 304 IPC. He also narrated

statements allegedly made during investigation by witnesses such as

Nirmal Barman, Unish Mia, Dhananjay Barman and Satyen Das, all

of whom had allegedly stated that upon hearing cries they rushed to

the place of occurrence and found Ramchandra Barman lying injured

after being assaulted by the appellant with a bamboo stick.

xlix. During cross-examination, PW-19 admitted the label affixed upon the

seized bamboo stick did not bear the signatures of witnesses. He

further stated that the bamboo measured approximately three cubits

in length. He also acknowledged that the sketch map did not indicate

the distances between the houses situated near the place of

occurrence.

27

35. The prosecution case rests upon a narrow yet coherent factual foundation.

The appellant and PW-1, Dhiren Barman, stood related as brothers.

Evidence adduced throughout the trial reveals the existence of a simmering

familial discord concerning agricultural affairs and allied matters. The

occurrence, according to the prosecution, was preceded by an altercation on

the previous day, during which the appellant is stated to have uttered words

of menace directed towards the family of PW-1. On the following morning,

Ramchandra Barman, the youngest son of PW-1, proceeded towards the field

with cattle for grazing. It is at that juncture that the prosecution alleges that

the appellant assaulted him by means of a bamboo stick, inflicting a blow

upon his head which ultimately proved fatal.

36. The Learned Advocate representing the appellant assailed the judgment of

conviction on several fronts. It was contended that the prosecution evidence

suffers from embellishments, omissions and contradictions of substantial

character. Attention was drawn to the fact that several witnesses are close

relatives of the deceased and therefore interested in securing conviction. It

was further argued that the alleged threat on the previous day finds no

contemporaneous reflection in the earliest version and emerged

subsequently. The seizure of a bamboo stick from the residence of the

appellant was also questioned, particularly in view of the admission that

bamboo sticks are commonly available in almost every rural household.

Learned counsel further submitted that the medical evidence does not

conclusively exclude the possibility of a fall, especially in view of the

concession elicited from PW-10 during cross-examination. On the strength of

28

these circumstances, it was argued that the prosecution failed to establish

guilt beyond reasonable doubt.

37. The Learned Advocate for the State supported the judgment of the Trial

Court and submitted that the prosecution evidence presents a consistent

narrative from the moment of assault till the death of the victim. It was

urged that the ocular account of the family members receives substantial

corroboration from the medical evidence, the hospital records, the post-

mortem findings and the conduct of the parties immediately after the

occurrence. The State further submitted that minor discrepancies are a

natural feature of truthful testimony and do not erode the central

substratum of the prosecution case.

38. Upon scrutiny of the entire record, this Court finds that the prosecution

evidence cannot be discarded merely because several witnesses belong to the

family of the deceased. Relationship by itself does not render a witness

unworthy of credit. On the contrary, a close relation who has witnessed an

occurrence is often the last person to permit the actual assailant to escape

and implicate an innocent person in his place. The evidence of a related

witness requires careful evaluation, not automatic rejection.

39. PW-1, the father of the deceased and the de facto complainant, furnished a

vivid account of the occurrence. He stated that the appellant came armed

with a bamboo stick and struck Ramchandra Barman on the head while the

latter was proceeding towards the field. His testimony also narrates the

immediate steps taken for medical treatment, the referral to Siliguri Medical

College and the eventual death of the victim during transit. Cross-

29

examination did not succeed in demolishing the core of his testimony.

Though certain omissions were elicited regarding the previous day's threat

and the absence of any earlier complaint, those aspects pertain principally to

motive and not to the actual assault.

40. PW-2, the mother of the deceased, furnished an account substantially in

accord with that of PW-1. She described the quarrel on the previous day, the

assault with a bamboo stick, the alarm raised by the victim, and the

subsequent transportation to the hospital. Her evidence reflects the natural

reaction of a mother witnessing the catastrophic injury suffered by her son.

Certain omissions concerning the previous altercation were brought on

record during cross-examination, yet the narrative concerning the assault

itself remained steadfast.

41. PW-3 and PW-4, brothers of the deceased, also attributed the assault to the

appellant. Both witnesses described the victim proceeding towards the field

with cattle, the appellant approaching and striking him with a bamboo stick,

and the subsequent efforts to secure medical assistance. Their evidence

bears internal consistency and harmonizes with the account of PW-1 and

PW-2 regarding the essential features of the occurrence.

42. The defence sought to draw strength from the evidence of PW-5, PW-6, PW-7

and PW-8. A close examination of their testimonies, however, does not

advance the defence case to any significant degree. PW-5 reached the place

after hearing commotion and found the victim lying on the road. PW-6

deposed regarding the existence of longstanding discord between the families

and stated that he learnt that the appellant had struck the victim with a

30

bamboo stick. PW-7 made reference to mutual fighting, yet his evidence also

records that he saw the appellant beating the victim on the head with a

bamboo stick. PW-8 similarly spoke of the strained relationship between the

brothers and referred to the appellant beating the victim on the head. The

evidence of these witnesses, when read in its entirety rather than in isolated

fragments, furnishes support to the prosecution version.

43. The medical evidence assumes considerable significance. PW-18 first

examined the injured victim in the Emergency Room and advised immediate

admission. PW-15, the treating surgeon, found the victim in a semi-

conscious state with a serious head injury. The CT scan revealed acute

subdural hematoma with mass effect, compelling referral to a higher medical

centre. PW-17 recorded that the victim was brought dead. PW-10, the

autopsy surgeon, detected hematoma beneath the scalp in the right parietal

region and haemorrhage within the brain substance. In his opinion, death

resulted from the head injury sustained by the deceased.

44. The suggestion that the injury could also result from a fall does not, in the

facts of the present case, create a doubt sufficient to displace the

prosecution case. Medical evidence serves principally as corroborative

material. Where reliable ocular testimony stands supported by medical

findings, a theoretical possibility extracted during cross-examination cannot

eclipse the cumulative force of the evidence.

45. The investigative record also furnishes corroboration. PW-19 proved the

registration of the case, the preparation of the sketch map, the seizure of the

bamboo stick and the collection of medical and documentary evidence.

31

Though certain lapses surfaced during cross-examination, including absence

of witness signatures on the label attached to the seized bamboo and lack of

precise measurements in the sketch map, such deficiencies do not strike at

the heart of the prosecution case. Investigation is a means to ascertain

truth; imperfections in procedure do not automatically extinguish otherwise

reliable evidence.

46. The question that then arises concerns the nature of the offence. The

evidence discloses that the assault consisted of a blow with a bamboo stick.

The occurrence arose against the backdrop of a rural family dispute. The

material on record does not indicate repeated blows with a deadly weapon,

nor does it reveal a carefully orchestrated design aimed at ensuring death. At

the same time, a forceful blow directed at the head, an eminently vulnerable

part of the human body carries with it the knowledge that such an act is

likely to cause death.

47. The Trial Court, therefore, committed no error in recording conviction under

Section 304 of the Indian Penal Code. The evidentiary fabric woven through

the testimonies of PW-1 to PW-19, reinforced by the medical records and

post-mortem findings, establishes beyond reasonable doubt that the

appellant inflicted the head injury which resulted in the death of

Ramchandra Barman.

48. The principal question that falls for consideration is not whether

Ramchandra Barman died as a consequence of the injury inflicted by the

appellant, for the evidence of the eyewitnesses, reinforced by the medical

testimony of PW-10, PW-15, PW-17 and PW-18, places that aspect beyond

32

the sphere of legitimate controversy. The real issue concerns the degree of

criminality attributable to the act and the precise provision of the Penal Code

within which such conduct may be accommodated.

49. The architecture of criminal homicide under the Indian Penal Code proceeds

upon carefully graduated distinctions. The law draws a marked line between

intention and knowledge. Though both are states of mind, they occupy

distinct juridical domains. Intention denotes a conscious objective to bring

about a particular consequence. Knowledge, on the other hand, signifies an

awareness that a particular consequence is likely to ensue from the act

performed, even though the actor may not specifically desire that result.

50. Section 304 Part II occupies that intermediate field where death is caused by

an act done with the knowledge that it is likely to cause death, yet without

any intention to cause death or to cause such bodily injury as is likely to

result in death.

51. The evidence in the present case does not disclose features ordinarily

associated with a deliberate design to extinguish life. The weapon employed

was not a firearm, a sharp-cutting weapon, or any instrument intrinsically

fashioned for lethal assault. The weapon was a bamboo stick commonly

available in a rural household. The occurrence arose in the background of a

longstanding family discord between two brothers. Nothing on record

suggests prior preparation, concealment, pursuit of the victim over a

distance, or a concerted plan reflecting a settled determination to kill.

52. Equally significant is the nature of the assault as emerging from the

prosecution evidence. The witnesses principally speak of a blow directed at

33

the head of the deceased. The prosecution case does not portray a sustained

and relentless attack continuing after the victim became incapacitated. Nor

does the evidence reveal repeated infliction of injuries upon several vital

parts of the body. The post-mortem report itself records a solitary fatal injury

manifested by hematoma beneath the scalp and intracranial haemorrhage in

the right parietal region.

53. These circumstances assume importance because intention, being a mental

element, is rarely proved through direct evidence. Courts ascertain intention

from the weapon employed, the part of the body targeted, the force used, the

multiplicity of injuries, the surrounding circumstances and the conduct of

the assailant before and after the occurrence.

54. In the present case, while the act of striking the head with force certainly

demonstrates recklessness of a grave degree, the surrounding circumstances

stop short of establishing a conscious objective to bring about death.

55. At the same time, the appellant cannot seek refuge behind the absence of

intention. A grown individual wielding a bamboo stick and directing a

forceful blow upon the head of another person cannot plausibly plead

ignorance regarding the probable consequences of such conduct. The head

houses the most delicate and vital organs of the human body. Any

substantial impact upon that region carries a manifest risk of fatal

consequences.

56. Knowledge, within the meaning of Section 304 Part II, therefore emerges

naturally from the proved facts. The appellant may not have desired the

death of Ramchandra Barman; nevertheless, he must be deemed to have

34

possessed awareness that a forceful strike upon the head was likely to place

the victim's life in jeopardy.

57. The medical evidence lends considerable support to this conclusion. PW-15

found the victim in a semi-conscious condition and the CT Scan disclosed

acute subdural hematoma with mass effect. PW-10 detected intracranial

haemorrhage and opined that death occurred due to ante-mortem head

injury. These findings reveal that the injury was neither superficial nor

trivial. It penetrated beyond the external structures and produced

catastrophic damage within the cranial cavity.

58. The legal distinction between murder under Section 302 and culpable

homicide punishable under Section 304 Part II frequently turns upon the

degree of mens rea discernible from the facts proved. Where the evidence

demonstrates a calculated intention to kill or to inflict a bodily injury

sufficient in the ordinary course of nature to cause death, the offence

ascends to the category of murder. Where intention remains elusive but

knowledge is unmistakably present, Section 304 Part II furnishes the

appropriate statutory framework.

59. The factual matrix of the present case fits more appropriately within the

latter category.

60. The previous day's altercation and threat, though relevant as evidence of

hostility, do not by themselves elevate the act into murder. Rural disputes

frequently generate impulsive acts born of anger, resentment and familial

friction. Criminal courts must distinguish between a homicidal act emerging

from a moment of violent confrontation and one executed pursuant to a

35

deliberate and settled design. The evidence here points more convincingly

towards the former.

61. Another circumstance which cannot escape notice is that after the assault

the immediate concern of the family centred upon securing medical

assistance for the victim. The record reflects that the victim was first taken

to M.J.N. Hospital, thereafter referred to a higher medical institution, and

ultimately succumbed during transit. The chain of events portrays a

situation where death followed the consequences of a grievous head injury

rather than a systematic assault intended to ensure the victim's demise.

Thus, when the entire body of evidence is viewed as an integrated whole, the

following propositions stand firmly established:-

a. The appellant inflicted the injury upon the deceased.

b. The injury was directed at a vital part of the body, namely the head.

c. The injury caused intracranial haemorrhage and resulted in death.

d. The circumstances do not establish a deliberate intention to cause

death.

e. The circumstances unmistakably establish knowledge that such an

act was likely to cause death.

62. These ingredients satisfy the requirements of Section 304 Part II of the

Indian Penal Code.

63. The conviction, therefore, rests upon a sound legal foundation. The evidence

neither permits an acquittal nor justifies conversion of the offence into one of

lesser gravity. Simultaneously, the material on record does not furnish a

basis for elevating the offence to murder punishable under Section 302. The

36

conviction under Section 304 Part II thus achieves fidelity to both the factual

realities disclosed by the evidence and the nuanced gradation of criminal

liability contemplated by the Penal Code.

64. The sentence, however, may legitimately be tempered in view of the passage

of time, the familial setting of the occurrence, the nature of the weapon

employed, and the absence of circumstances indicative of exceptional

depravity. Such considerations bear upon punishment and not upon

culpability. The finding of guilt under Section 304 Part II consequently

remains immune from interference, though the ends of justice stand

adequately served by confining the substantive sentence to the period

already undergone. Court warrants affirmation, though the sentence calls for

modification.

65. Accordingly, the appeal fails on merits and the finding of guilt recorded

against the appellant under Section 304 of the Indian Penal Code stands

affirmed. The sentence imposed by the Trial Court is, however, modified. The

appellant shall suffer imprisonment for the period already undergone by him

in custody. Subject to payment of any fine, if imposed and remaining

unpaid, the appellant shall stand discharged from his bail bonds upon

compliance with the directions of the Trial Court.

66. The appeal is, therefore, dismissed with the aforesaid modification in

sentence. The conviction is affirmed; the sentence is confined to the

imprisonment already undergone.

67. In view of the above discussions, the instant criminal appeal is dismissed.

However, considerable time has elapsed from the date of occurrence of the

37

offence and the sentence is reduced to the period of incarceration undergone

by the appellant.

68. There is no order as to costs.

69. Trial Court records along with a copy of this judgment be sent down at once

to the Learned Trial Court for necessary action.

70. Photostat certified copy of this judgment, if applied for, be given to the

parties on priority basis on compliance of all formalities.

(Ananya Bandyopadhyay, J.)