Crl.A. 58/2003 BEFORE THE HON’BLE MR JUSTICE B D AGARWAL Heard Sri B K Bhattacharjee, learned counsel for the appellant. Also hea rd Sri B B Gogoi, learned Additional Public Prosecutor for the State of Assam. A lso perused the impugned Judgment and evidence on record. 2. This appeal is directed against the Judgment and Order dated 30. 12.2002, passed by the learned First Additional Sessions Judge (Adhoc), Tinsukia , in Sessions Case No. 137 (M)/ 2001 under Section 302 of the Indian Penal Code. By this impugned order, the learned Sessions Judge has convicted the sole appel lant under Section 304 Part-II of the Indian Penal Code and she has been sentenc ed to undergo RI for 4 (four) years with a fine of Rs. 3,000/-. Being aggrieved with the conviction the accused persons have preferred this appeal. It may be me ntioned that the co-accused has been convicted. 3. The prosecution case is that both the deceased and the accused w ere living in the same building. The deceased was living in the ground floor and the appellant was living in the first floor. The prosecution story, in brief, i s that, on 29.10.1998, while the deceased was cleaning the courtyard, the appell ant threw some rubbish in the courtyard and there was some altercation and there after, the appellant threw a brick, which hit the head of the deceased and as a result, he succumbed to his injuries. Consequently, the FIR was lodged and the a ppellant was tried for the offence of murder and he had been finally convicted a nd sentenced under Section 304 Part-II of the Indian Penal Code. 4. As could be gathered from the record, the defence case was that in the midst of altercation, the co-accused, Smt B Tulsi, the sister of the pres ent appellant threw a broken brick from the ground itself, which hit the side po rtion of the parietal region of the head of the deceased. During investigation, the Investigating Officer also obtained statements of the 2 (two) witnesses aged about 11 and 15 years, respectively, under Section 164 CrPC. Those 2 (two) witn esses were the brother and son of the co-accused, Smt B Tulsi. But, during the c ourse of trial, those witnesses were not examined by the prosecution. In their s tatements, the aforesaid 2 (two) boys had corroborated the defence story that on e broken brick was thrown by Smt B Tulsi, the sister of Smt B Eramma, from the g round. 5. The above apart, the Autopsy Report also confirmed that the dece ased did not sustain any injury on the temple of the head and instead the injury was sustained on the left parietal region. In other words, the medical evidence supports the theory of throwing the stone from the ground and not from the top of the building. 6. Admittedly, the appellant was standing in the first floor of the building and as such, the deceased must not have sustained any injury by throwi ng of a brick from the first floor. 7. For the foregoing reasons, I am of the opinion that the appellan t may be given the benefit of doubt. Accordingly, the impugned order dated 30.12 .2002, is hereby set aside. 8. The appellant is set at liberty forthwith and the bail bonds of the appellant also stand discharged. 11. In the result, the appeal stands allowed.