P.K. Goswami, C.J.
1. This appeal is by three appellants who are the only convicted persons out of twelve including them charged before the Court of Session under various sections of the Indian Penal Code. These three were convicted under Sections 302/149, 302/34 and 147, I.P.C. and sentenced to imprisonment for life under the first two sections and one year's R.I. under Section 147, I.P.C.
2. Prosecution case as revealed in the first information report is that on 2nd September, 1966 at about 8-00 A.M. when Ramesh Chandra Nath (deceased) and his son Rabindra Kumar Nath (P.W. 4) were ploughing their land, accused Majan Mia along with 30/35 persons armed with lenjas, spears, daos and lathis attacked them from all directions. Ramesh and Rabindra received severe injuries and Ramesh who was removed to the Barkhola hospital succumbed to the injuries the same day after a dying declaration had been recorded by the doctor attending him there. Rabindra who received medical treatment at Silchar has survived the attack.
3. According to the prosecution, Ramesh and his brothers have cultivable land under jote from their aunt Champak Devi measuring about 14 kears and they have been in possession of the same since the time of her husband under whom also they had held the land. Ramesh was separate from his other brothers and while he had separate possession of four kears, he also along with his brothers had joint possession of the remaining kears. It is said that on the date of occurrence when Ramesh and Rabindra were on their field ploughing a portion of this land, the accused persons along, with many others came in two boats and. attacked them resulting in injuries to both the persons with the result as above stated.
4. Prosecution examined 13 witnesses including two doctors and two police officers. The evidence of another doctor who was examined in the Committing, Court has been tendered in the court below. The defence of the accused is that they are innocent and accused Majan particularly states that the land was in his possession under Champak Devi and that his servants Jonab Ali, Aktar Ali, Jomsed Ali and Irsad Ali went to the field for clearing water hyacinth and he knows nothing about the occurrence.
5. Prosecution rests on the evidence of Lakshyamani Nath (P.W. 1), Rabindra Chandra Nath (P.W. 4), Gour Ch. Rai (P.W. 6), Basant Rai (P.W. 7), Girindra Das (P.W. 8), Kumud Ranjan Nath (P.W. 9) and Suresh Chandra Nath (P.W. 10), who, according to it, saw the occurrence. It may be noted here that the learned Sessions Judge disbelieved the evidence of P.Ws. 1, 6 and 7 and the learned Public Prosecutor who appears on behalf of the State fairly concedes that he cannot say that the conclusions arrived at by the learned Sessions Judge with respect to them are unjustified. We have gone through the evidence of these three witnesses and are satisfied that the learned Judge was justified in not relying upon their testimony for the purpose of considering the charges against the accused persons. We may only briefly state that P.W. 1 is no one else than the brother of the deceased and wrote a detailed first information report, according to him, on the verandah of the hospital after death of his brother and lodged the same at the Thana at 4-00 P.M., although the Thana record under Section 154 of the Criminal Procedure Code shows that the report was lodged at 12 noon. Be that as it may, this either was prepared after the death of his brother which is clearly noted in the document itself. Although he does not categorically state in this ejhar that he had seen the, occurrence, reading it, one takes the impression that he had seen Majan, his son and nephews attacking the persons, being armed with various' weapons. In evidence he mentions having met various witnesses at the place of occurrence, but he does not state any names in this ejhar, On the other hand,' he states that 'the names of other accused persons and witnesses will be revealed at the time of investigation'. So far as the accused are concerned he only names Majan Ali, his son and nephews along with 30/35 persons. Since admittedly Majan AH has two sons facing trial and he has used singular number in the ejhar, it is not even clarified during investigation which son was meant by this witness. There is. also nothing to show that any of the accused parsons facing trial are the nephews of Majan AH. Be that as it may, P.W. 1 stated that he reached the place of occurrence first of all. He also stated that his brothers also arrived there. He. was in his house at the time and the place of occurrence would be about half a mile from his house. He further stated that 'suddenly, at about morning 7/8 heard hulla 'Ramesh Nath is being murdered by persons' in the field. I went to the place of occurrence and saw accused Majan Mia dealing blows on the head of Ramesh Nath with a lathi from a distance of 20/25 nals. At that time I saw another of 26/25 persons in the boat. The boat anchored at a distance of 20/25 nab to the west of the place of occurrence. Majan 'Mia got up on the boat having dealt blows. x x x x x. As soon as they had got up on the boat and I had just reached the place, the boat sailed away. Another boat was sailing to the south-west of this boat at (a) distance of 20/25 nals.'
It is therefore clear that this witness could not have seen the occurrence. ' On his own showing he was half a mile away ,and there is evidence on record to show that there was flood and the entire area was flood-affected and people had to punt their boats in order to go from one place to another. The learned Sessions Judge is therefore perfectly justified in rejecting the testimony of this witness,
6. P.W. 6 also saw the assault from his house which is about two furlongs from his homestead. This witness stated that he had identified accused Nisar Ali, who is not an appellant, in the jail. It is also not clear why this witness had to be taken to the jail for identification of accused persons. We have nothing to show that there was any test identification parade held in this case although the ejhar only gave the name of Majan and none else. This witness came by boat from his house after hearing alarm to the effect 'man is being killed'. He admits that the place of occurrence was not visible before he got up on the boat and men came to their sight only after he had advanced about 20/25 nals by boat. It is difficult to rely on the testimony of recognition of accused persons as assailants by this witness. The learned Judge was fully justified in discarding his testimony. P.W. 7 also was at his house and went to the place of occurrence after hearing a cry 'I am' being killed - I am being killed'. He went on the same boat with P.W. 6 and another Padmalal who is not examined in the case. For the reasons already given for discarding the evidence of P.W. 6, we are unable to rely on the testimony of this witness as well and agree with the finding of the learned Sessions Judge in this respect.
7. There, remains now the evidence of P. Ws. 4, 8, 9 and 10. P. W. 4 is the son of the deceased and he also received severe injuries on his person. He stated that Majan first dealt a lathi blow on the head of his father. - Then all the persons began to assault. Father raised alarm and he rushed towards him. Then Nimar blocked his way and Majan hurt him with a lathi. Then Majan inflicted a 'S.ulphi' on his head. When Abdul Jab-bar dealt cut blow,' he tried to catch hold, of the same and sustained injury on his hand. He fell down when all assaulted him and he lost his sense. According to him, he regained his Sense at Barkhola hospital. In the course of cross-examination he was confronted with an earlier statement which he had made before the police to the effect that he stated to the police that the accused persons first assaulted him getting down from the boat and then he lost his sense. This statement, which he denies, has been proved by the defence through the police officer (P.W. 13). ' If his earlier statement to the police is correct and he was the first man to be assaulted as a result of which he fell down senseless, his testimony that he had seen the assault on his father cannot be relied upon. Unfortunately there is no charge framed against all these accused persons for assaulting this witness.
8. At this stage we have also to bear in mind the dying declaration of the deceased. .The learned Sessions Judge has brushed aside, this statement which is marked as Ext. 3 as unimportant. We are, however, unable to treat it in the manner in which 'the learned Sessions Judge has dealt with this important piece of evidence. The statement of the deceased recorded in Ext. 3 may be set out : 'I went to plough, Junab Ali and his sons and brother and 30/35 persons - I do hot know their names - assaulted me with lenja, spear, dao and lathi. Majan hurt me on my head'.
It is curious as well as intriguing that the police officer who must have seen this dying declaration took no steps to put Junab Ali and his sons and brother under arrest. Even though the learned Sessions Judge during the course of the trial has considered that this document is not important, the investigating officer had no reason to think about it in the same way while he was commencing investigation in order to track the offenders. This is a most unsatisfactory way of investigating a case under murder charge. P.W. 4 does not say a word about Junab Ali and his sons and brother although the deceased had made such a statement. The doctor (P.W. 6) who recorded the dying declaration stated that the injured spoke in a distinct tone and he faced no difficulty in understanding what he said. We are not impressed with the evidence of P.W. 4 in giving a complete go-by, for reasons best known to him, to the story given by the deceased who was passing away within a short time of making that statement, It is not possible to think that at that hour of impending death the deceased, in the entire circumstances of this case, would implicate Junab Ali, his sons and his brother if they were not really the assailants. It is further intriguing that Lakshyamani Nath (P.W. 1) does not state a word regarding Junab Ali, his sons and his brother, but instead 'implicates Majan, his son and nephews. There is therefore, scope for thinking that the servants of Majan have been given a go-by and the master has been brought to the scene to avenge the unfortunate death. There is another infirmity in the dying declaration that Majan as such has not been named therein, but if he is the person he has been described as Mijan, Prosecution has not taken any care to bring to light whether Majan was also known in the village as Mijan. The learned Sessions Judge was not justified for the reasons given by him to discard the dying declaration in the way that he has done. It is not necessary that the dying declaration should be in the form of questions and answers. The declaration should be taken down in the exact words of the person making it. It should be ipsissima verba of the person making it. On the other hand, it may be open to objection if leading questions are put to the declarant for the purpose of eliciting information. It is for the Court to decide in the circumstances of each case whether the statement recorded is the free, voluntary, clear and unambiguous statement of the deceased at the time when he was capable of making that statement, This document has fulfilled that test in the case on the evidence of the doctor who recorded the same. To brush aside this dying declaration is only to deprive the accused of the benefit which they could easily claim in a case of this nature, when some other accused are substituted for the prominent ones mentioned by the deceased. Keeping this aspect in view also we are unable to give any credence to the evidence of P.W. 4 which we discussed above.
9. P.W. 8 has land contiguous west of the land of Gour Netai which is to the adjacent east of the place of occurrence. He was said to be on his land when he heard a cry in the jote land of Ramesh Nath, He saw about 15/20 persons assaulting Ramesh Nath and his son with lathi, lenja, dao etc. He went 10/12 nals towards that direction and his statement is that Majan Mia, Abdul Jabbar, Mijazur and Samjid were assaulting. He also had seen Indraj All fighting. He raised a cry 'there is bichar'. By this time the witnesses came by boat. Then the accused persons left the place before the witnesses came, Lakshyamani also came. He then went to the place of occurrence and found Ramesh and Rabmdra lying in an injured condition. His evidence in crossexamination is that one could go to the place of occurrence from his land 6n foot. There was no water in between. He also admits that his land will be 100 yards away from the place of occurrence and middle plot was with growing paddy; even the plot of Gour Netai was with standing paddy. He however stated before the police during investigation that he could not go to the place of occurrence immediately as there was standing water in between his field and the place of occurrence. This statement has been proved through the investigation officer. He also had to admit in the course of his cross-examination that he could not state who hurt whom and at which part of the body. He admitted that he came along with Lakshyamani and he saw Lakshyamani going after the accused persons got up on the boat. The evidence which we have noticed above does not jnspire any confidence. We are not satisfied that this witness saw the occurrence. He is in the same boat with Lakshyamani so far as the quality of evidence is concerned.
10. P.W. 9 was ploughing on his own land and saw two boats coming. Persons from one boat entered into the land of Ramesh Nath. 10/12 persons started fighting as soon as they entered the land. He recognised only Majan Mia among those persons who were fighting. He recognised no other person. At this stage, the Public Prosecutor in the Court below was given permission to draw the attention of the witness to his earlier statement to the police to the effect that he had stated therein as recognising Abdul Jabbar, Rekman, Sattar and Mijazur. He then admitted that he did state to the police that he had recognised the above four persons as well. He gave no reason why he omitted to implicate these four persons and about his concentrating on Majan Mia. In absence of any satisfactory explanation, it is difficult to rely on the testimony of a witness who has no scruple to implicate any persons to his or somebody else's wish or liking in a serious charge of murder. We are, therefore, unable to rely on the testimony of P.W. 9.
11. We are now left with P.W. 10 who was another person who had land nearby and was said to have seen the occurrence from his land. He stated that there were 25/30 persons armed with lathi, lenja and dao. Ramesh and Rabindra have been hurt. He stated:
I recognised four/five persons when they were boarding on the boat after fighting they are Majan, Abdul Jabbar, Mijazur. I recognised these very three persons.
At this stage, the Public Prosecutor was allowed by the Court to draw attention of the witness to his earlier statement to the police and he denied that he had stated therein that Sattar, Sanjid, Kuti, Rekman and others had also fought. The character of his evidence is therefore of the same type as that of P.W. 9 and the reasons given for discarding the evidence of P.W. 9 equally apply to this witness. This witness has also no scruple to implicate persons indiscriminately in a murder charge.
12. in the result, the evidence of all the witnesses who have deposed to the occurrence is found to be unreliable, and we find it judicially unsafe to convict these three appellants on their testimony. It is true that one person has been killed and another received severe injury while defending their possession about which there is sufficient evidence. We have some justifiable suspicion that the case must have taken shape after some deliberation and that is the only reason why Junab Ali and others have vanished into thin air and other persons who may not have been there have figured prominently in the case. At any rate, the accused are entitled to the benefit of reasonable doubt in this case and they are acquitted of all the charges.
13. The appeal is allowed and the conviction and sentence of all the accused persons are set aside. Accused Majan Mia shall be released from jail forthwith and the other two accused persons who are on bail shall be discharged from their bail bonds.
D.M. Sen, J.
14. I agree.