Baharul Islam, J.
1. The appellant was convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. The prosecution case, in brief, is this:
2. On 29-6-1970, at about 4 P.M. at village Borchola under Laharighat P.S. Jagen Deka (deceased) was cutting paddy in his field, along with his brother Deben Deka (P.W. 1). At that time two young boys, sons of accused Sadat Ali, were cutting grass from the field belonging to Jogen Deka. Jogen Deka noticed that the boys were cutting grass; along with the grass they also cut some paddy. So Jogen Deka scolded them. Thereupon the boys left the paddy field for their home. After sometime about 6/7 persons including the appellant came and assaulted Jogen Deka. The prosecution case is that accused Sadat Ali caught hold of Jogen, and the appellant stabbed Jogen on the chest with a dagger, Jogen Deka fell down and died instantaneously. The assailants fled away. Deben Deka (P.W. 1) and Kulasing Deka (P.W. 3), who were cutting paddy in their nearby fields ran to the place of occurrence and lifted the injured and carried him to his home. P.W. 1 lodged an ejahar at the Laharighat Police Station.
3. The Police registered a case and after investigation submitted a charge-sheet against the appellant under Section 302/447, Indian Penal Code and against Sadat Ali and Sahar Ali under Sections 302/34/447, Indian Penal Code. After preliminary enquiries, the committing Magistrate committed the appellant and the two other accused persons under Section 302 read with Section 34 of the Penal Code to stand their trial in the Court of Session. In the Court of Session, the appellant was charged substantively under Section 302 of the Indian Penal Code and Sadat Ali and Sahar Ali were charged under Sections 302/114 of the Indian Penal Code.
4. After trial the learned Sessions Judge convicted and sentenced the appellant only, as stated above, and acquitted the other two.
5. The fact that Jogen Deka was done to death has not been disputed before us. The evidence of P.W. 2 (Dr. Hemanta Bora, S.D.M.O., Nowgong) who held the post-mortem examination, shows that severe injuries were caused to the deceased. The injuries found by him were as follows:
One punctured wound right front of chest upper part just below the clavicle bone - size 3' X 1' X 1' lung deep. Apex of the right lung cut with incised wound - size 2' X l/2' X 1'. Plura cut along with the injury.
In his opinion, the injuries were ante-mortem and the death was due to shock and haemorrhage as a result of the injuries sustained.
On receipt of the injuries, Jogen Deka died. We have no doubt in our minds that homicide amounting to murder was committed to him.
6. The only point that falls for serious consideration is whether it was the appellant who committed the murder.
7. The prosecution relies for the conviction of the E.ppellant on the evidence of three alleged eye-witnesses P.W. 1 (Deben Deka), P.W. 3 (Kulasing Deka) and P.W. 4 (Sairam Deka). P.W. 1 is the brother of the deceased. He deposes that he lived jointly with Jogen. The occurrence, according to him, took place at about 4 P.M. At that time P.W. 1 and his brother Jogen were cutting paddy in their fields at a distance of about a furlong from their residence. At that time two sons of Sadat Ali along with accused Saher Ali were cutting grass in the field. They also cut paddy. So Jogen (deceased) protested and scolded them. They then left the place for home. This witness also left for home with bundles of paddy and after putting the bundles of paddy at home, he returned to the field. On return to his field, he saw 'accused Sadat Ali, Umar Ali, Jalaluddin, Siraj Ali, Sahar Ali, Fazar Ali and appellant, Rajat Ali, coming towards his field. They came near Jogen. At that time he was at a distance of 60 cubits. He saw accused Sadat catch hold of his brother and accused Rajat Ali stab him (Jogen). On receipt of the injury, Jogen fell down and the culprits ran away. While running away from the place of occurrence accused-appellant, Rajat Ali, picked up the holunga (a pointed bamboo pole for carrying paddy). P.W. 1 then raised an out-cry, 'what has happened, what has happened'. He also heard P.W. 3 raising hulla 'man is killed, man is killed'. P.W. 3 was harvesting paddy along with his mother, Prabhavad, in his nearby field. Moleswar Deka (P.W. 5) and Satram Deka (P.W. 4) made an attempt to catch hold of the culprits, but they failed. They all then came near the injured who was in an unconscious state. P.W. 3, P.W. 4 and P.W. 5 then carried the dead body home. In cross-examination he had admitted that P.W. 3 is a relation of the deceased through his wife. In cross-examination he has further admitted that he did not see any weapon in the hands of the accused persors. His further evidence is that the number of culprits was nine - including two boys. His further evidence is that he along with P.W. 3 came near the injured, who was profusely bleeding. He further deposed that the clothes of P.W. 3 were besmeared with blood. He then became unconscious. He further admits that Jogen had 'Holunga', the ends of which were pointed.
It is difficult to place reliance on the evidence of this alleged witness because of a number of material contradictions and absurdities in his evidence. In the F.I.R. he stated that a young son of his co-villager was cutting grass in his field. In Court he says that Saher Ali along with two sons of Sadat Ali were cutting paddy and grass. In the F.I.R. he stated that the seven accused persons came to their field, committed trespass and forming an unlawful assembly surrounded his brother, Jogen, and then the appellant stabbed his brother on the chest. In cross-examination he has stated that the accused persons had no weapons in their hands. It is unbelievable that when a number of persons come in order to assault a person they would come empty handed, particularly when they knew that the person to be assaulted as well as his brother had 'Holungas' with them. In the F.I.R. he further stated, 'having seen the occurrence while I offered protests, the accused persons paid no heed.' this is a piece of make-believe evidence. He was in the field allegedly tying bundles of paddy and admittedly he having a Holunga nearby, did absolutely nothing - not even tried to save his brother. To the Investigating Officer P.W. 1 stated that it was in the morning one son of Sadat Ali was cutting grass and the boy was scolded by the deceased, whereas in evidence he says that Saher Ali along with two sons of Sadat Ali were cutting grass and paddy near about the time of the occurrence, which took place at about 3.30 or 4 P.M.
8. P.W. 3 is Kulasing Deka. His evidence is that on the day of the occurrence at about 4 or 5 P.M. he was harvesting in his field along with his mother, Prabhabati. At that time Jogen was also harvesting paddy in his (Jogen's) field. For sometime he went to his home with bundles of paddy and after putting the same at his house he returned. On reaching his field, he saw the accused persons coming towards Jogen; accused Sadat Ali caught hold of Jogen when the appellant stabbed Jogen on the chest with a dagger; whereupon Jogen fell down. He then raised a hue and cry - 'man is killed, man is killed'. Thereafter the assailants left the place.
He further deposed that Jogen died after about five minutes of the receipt of the stab. He says that he (Jogen) was profusely bleeding. Shortly thereafter many villagers came there and they lifted the dead body of Jogen to the house of P.W. 1. In the cross-examination, P.W. 3 has contradicted P.W. 1 when he has stated 'in that morning hour Jogen and Deben did not cut paddy in their field. Jogen came to his field at about 2.30 P.M.' His furher evidence, 'Jogen alone cut paddy in his field' belies the evidence of P.W. 1. Further, P.W. 1 has stated that P.W. 3 and his mother were harvesting paddy in their field along with two hired men, Saji and Batneswar. But P.W. 3 gives a lie to the evidence of P.W. 1 when he says 'during my presence in the field only myself and my mother worked in our field'. In his cross-examination he has categorically stated that no labourers were working with them. This witness in cross-examination further says that 'one ejahar was written by somebody in the house of Deben. I was pre~ sent there. I then gave the names of two accused persons Sadah and Rajat Ali. But the names of other five could not then be ascertained.'
One significance of the above piece of evidence of P.W. 3 is that it was he who gave the names of the appellant Rajat Ali and accused Sadat. It implies that these names were not known to P.W. 1. The second significance is that an ejahar was prepared in the house of P.W. 1. but there is no knowing as to what happened to that ejahar, as the ejahar proved in the care (Ext. 1) was lodged verbally by p W. 1 and recorded by the Investigating Officer. There is the suggestion to the witness that he was not an eye-witness.
The only other alleged eye-witness is P.W. 4. His evidence is that he was at the place of occurrence at about 3 P.M. on the date of the occurrence. He further says that at that time P.W. 3 and his mother were cutting paddy in their field. He also does not corroborate the evidence of P.W. 1 that P.W. 3 and his mother were cutting paddy with two others. P.W. 4 further deposes that he sew about six or seven persons coming towards the field of Jogen; they approached Jogen and all of them murdered Jogen. He has further deposed that out of the 6/7 persons he recognised the appellant, Rajat Ali, and accused Sadat. He has further deposed that he along with P.W. 3 and P.W. 5 (Moleswar) carried the dead body to the house of Jogen. He did not go to the Thana.
P.W. 5 is not an eye-witness to the occurrence. According to the evidence of P.W. 4, it was P.W. 3, P.W. 4 and P.W. 5, who carried the dead body of Jogen to his home. It is also in evidence that at the time Jogen was profusely bleeding and that the clothes of these persons were besmeared with blood. But curiously enough for reasons known to them, the police did not seize the blood stained clothes of any of these witnesses. Defence challenged the presence of these persons, and being eye-witness to the occurrence. Had their blood stained clothes been seized, they would have clearly proved their presence. This leads to an infermaence that presumably these witnesses were; not present at the time of the occurrence and that they were not the persons who carried the dead body of deceased Jogen.
9. Due to the above mentioned material discrepancies in the evidence of P. Ws. 1, 3, and 4, no reliance can be placed on them.
10. Another circumstance of which mention may be made is the delay in lodging the ejahar. The occurrence took place, according to the entries in the F.I.R., at about 4 P.M.; the ejahar was lodged at 11 P.M. The distance between the Thana and the place of occurrence is seven miles. Time they took in carrying the dead body from the place of occurrence to the Police Station would be a little over two hours. The dead body was carried on a bier on the shoulders of persons. Even if some arrangements had to be made, they took about one hour at the most. But the time taken in the instant case was about seven hours. The rest of the time taken has not been explained by the prosecution. The defence suggestion is that the time which has been taken by the prosecution was taken by the witnesses in fabricating a report in the house of Deben (P.W. 1), which was not lodged at the Police Station. The defence suggestion is that Jogen was killed by some unknown assailants and out of suspicion due to some dispute with regard to Adhi matter, the names of the culprits including the appellant were implicated in the F.I.R. The suggestion cannot be ruled out.
11. We have declined to place any reliance on the evidence of P. Ws. l. 3 and 4 for the reasons given above. Further, it has to be mentioned that these witnesses appear to be further unbelievable. For when they have falsely implicated several innocent persons, since acquitted, there is no guarantee that the evidence of these witnesses with regard to the appellant may be true.
In the case of Balaka Singh v. State of Punjab 1975 SCC (Cri) 601 : 1975 Cri LJ 1734, Fazl Ali, J., speaking for the Supreme Court observed as follows:
If the prosecution could go to the extent of implicating four innocent persons by inserting their names in the inquest report they could very well have put in the names of other five appellants also because they were equally inimical to the prosecution party, and there could be no difficulty in doing so because it is found by the High Court that all the prosecution witnesses belonged to one party who are on inimical terms with the accused.
His Lordship has further observed:
Where the grain cannot be separated from the chaff because the grain and the chaff are go inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.
12. In the result, the appeal is allowed. The conviction and sentence are set aside. The appellant is acquitted. He shall be set at liberty forthwith.