B.C. Chakrabarti, J.
1. This is an appeal against an order of conviction and sentence passed by the learned Additional Sessions Judge, Bankura, in Sessions Case No. 2 of June, 1979. All the 4 appellants stood charged under Sections 447, 323 and 304, Part I of the Penal Code. All of them were found guilty under Section 304, Part II, I. P. C. Appellants Madan Laha, Panchanan Laha and Thakurdas Santal alias Hansda were sentenced to suffer R. I. for 7 years each while the appellant Jugal Kishore was sentenced to suffer R. I. for 3 years. All the 4 appellants were also found guilty under Sections 447 and 323, I. P. C. and sentenced to suffer R. I. for 3 months and 6 months each, respectively.
2. The prosecution case in brief is as follows:
Plots Nos. 34 and 75 of Mouza Kankrasole, P. S. Raipur belonged to the informant, Anjan Kumar Nad and his brothers. They had grown paddy on the lands in the relevant year. On the morning of 29-11-1978 Niranjan Nad (P. W. 3) found the accused persons being armed with lathis and axe engaged in harvesting the crop grown by the Nad brothers. Niranjan reported the matter to Anjan (P. W. 1), Angsu (P. W. 2) and Tarini (since deceased) who thereupon went to Raipur P. S. while Niranjan came back to the paddy field. At the P. S. Anjan made a statement which was recorded by the Officer-in-Charge and on the basis thereof notices under Section 154, C. P. C. were issued and a copy of the same was served upon P. W. 1 at the P. S. while another copy was directed to be served upon the accused persons on the spot. The Nad Brothers-being accompanied by two constables and an A. S. I. set out for the disputed land. While coming near the plot Tarini went ahead of the party and asked the accused persons not to cut the paddy from their land. He was closely followed by his brothers and the police party. On the land the accused Panchanan and Madan assaulted Tarini with lathi on his head. Angsu rushed to the rescue of Tarini when Madan and Panchanan struck him on his forehead with lathi while the accused Thakurdas hit him with an axe. Both Tarini and Angsu fell down upon the land with bleeding injuries. It is also the prosecution case that Niranjan also was assaulted on his right hand by a lathi by Madan. The accused persons along with their weapons were arrested by the police party immediately after the incident. A little later S. I. R. P. Banerjee, the Investigating Officer reached the spot. He seized the weapons as also a part of the harvested crop under seizure lists. The victims of as-sults were sent to Raipur Primary Health Centre in a police jeep. Thereafter P. W. 1 gave a written statement to the S. I. R. P. Banerjee which was forwarded by him through the Chowkidar, P. W. 16 to the Police Station (Ext 1). This written complaint has been treated as the F. I. R. and the formal F. I. R. was drawn up by P. W. 18 at the P. S. (Ext 1/1). The victim Tarini was forwarded from Raipur Primary Health Centre to Bankura Hospital where he died on the very same night. On the basis of the case as aforesaid the accused persons stood variously charged under the different sections mentioned above.
3. The defence case in brief is as follows:
There is dispute over the title and possession to plots Nos. 75 and 34 between the complainant party and the accused. Litigation between them over the same is pending in the Civil Court at Bankura. The incident did not take place in the manner, under the circumstances and at the time and place alleged by the prosecution.
4. As many as 21 witnesses were examined in the case for prosecution. The defence did not adduce any evidence oral or documentary. Of the witnesses P. Ws. 1, 2 and 3 are the principal eye-witnesses to the occurrence. P. Ws. 4 and 5 are police constables and P. W. 15 Rajyesswar Das is an A. S. I. of Felice who accompanied the Nad brothers from Raipur P. S. They are also, thereafter supposed to be witnesses to the occurrence. P. Ws. 6, 7, 8, 9 and 10 are seizure list witnesses. P. W. 11 is a Doctor of the Raipur Primary Health Centre. He examined Angsu on 29-11-1978 and Niranjan on 30-11-1978. He did not examine Tarini for, before his arrival at the Hospital he is said to have been sent to Bankura at the instance of the compounded The compounder, however, was not examined. P. W. 14 Dr. D. Dhar held post-mortem examination on the dead body of one Tarini Nad on the identification by constable No. 1070, Ranjit Banerjee in connection with Bankura P. S. U. D. Case No. 215 dated 30-11-1978. He found two injuries of which injury No. 1 was fatal. According to the Doctor this injury was caused by a single blow. P. W. 19 is the Junior Land Reforms Officer who held an enquiry in regard to the possession of the two plots in connection with the Raipur P. S. case. His report, Exhibit 5 indicates as if the Nad brothers were in possession. P. W. 20 is the I. O. of the case and P. W. 21 Sukdeb Layek held inquest on the dead body of Tarini pursuant to the information of the Ward Master of the hospital. The inquest report has been marked Ext. B. This witness sent the dead body to the morgue through constable, Ranjit Banerjee.
5. Upon a consideration of the evidence on record the learned Judge in the Court below found that the accused persons trespassed upon the land, namely, plots Nos. 75 and 34 of Mouza Kankrasole on the morning of 29-11-1978, that on the protest by the Nad brothers the accused persons fell upon them, severely assaulting Tarini as a result whereof Tarini died on the same night at Bankura Hospital. The learned Judge further held that the accused persons were actuated by a common intention in committing the acts of assault which resulted in the death of one namely, Tarini. He accordingly found all the four guilty under Section 304, Part II, I. P. C. They were also found guilty for having caused hurt to Angsu and Niranjan under Section 323, I. P. C. Being aggrieved at the order of conviction and sentence the accused have preferred the present appeal.
6. Mr. Mukherjee appearing on behalf of the appellants contended that there is considerable discrepancy between the case made out in the F. I. R. and the case put forth during the trial, that the time of the occurrence has been purposely shifted and that the F. I. R. was drawn up later and not at the time noted therein. He also complained that the medical evidence as to the cause of death is inconsistent with the oral testimony regarding the assault on Tarini. He further made a grievance that material witnesses have been withheld, that some important witnesses have been examined long after the incident and that the investigation was most perfunctory and slipshod. He also made a grievance that the prosecution did not even try to establish that Tarini who was examined by P. W. 14 the Autopsy Surgeon is the same person who was the victim of assault at Kankrasole. In fine his contention is that the prosecution has failed to preve that the incident occurred in the manner and under the circumstances and about the time alleged by the prosecution.
7. In order to appreciate the contentions thus raised by Mr. Mukherjee it becomes necessary to scrutinise the evidence more particularly with regard to the incident as coming from P. Ws. 1, 2, 3, 4, 5, 6 and 15. Before, however coming to consider their evidence it may be relevant to consider the case as made out in the F. I. R. which according to P. W. 1 was drawn up at the spot and immediately after the occurrence. This F. I. R. records the date and hour of occurrence to be between 8 hours and 09.15 hours of 29-11-1978. The formal complaint was received at the P. S. at 10.10 hours and was despatched on the next day i.e. 30-11-1978, the time of despatch being not noted. The case made out in the written complaint is an follows:-
At about 8.45 a.m. the informant being accompanied by his brother Tarini lodged an information at the P. S. regarding the cutting away of paddy from their lands in plots Nos. 75 and 34. The informant obtained a notice under Section 154 from the P. S. and a police party was deputed. Thereafter Tarini and Angsuman entered upon the land and saw the accused persons cutting paddy from the lands. When the said brothers approached to resist them, Jugal Kishore struck Tarini on his head with a lathi. Panchanan also struck him with a lathi and Madan Laha went on striking with a lathi. Thakurdas struck Angsuman on the head witih a lathi. Both of them received fracture injuries on their heads and both fell down. In the meantime the police reached there and caught the accused persons red-handed with the paddy and arrested them while they were engaged in assaulting the victim. The incident wag seen by the 3 brothers besides Tarini as also the police party. It was about 9.00 a.m. when the scuffle ensued.
8. Now the evidence of the informant P. W. 1 is as follows :-
Panchanan and Madan struck Tarini on his (head with their lathis. Angshu was hit on the head by a lathi by Madan and by an axe by Thakurdas. Niranjan was also hit on the hand by a lathi. In cross-examination he states that at first accused Panchanan struck Tarini on the forehead by a lathi. He denies to have stated in the F. I. R. that his brother Tarini was (hit on the forehead by Thakurdas. He did not state in the F. I. R. that Tarini was hit on his forehead by Panchanan. The evidence given by him in Court differs from the case made out in the F. I. R. in material particulars. In evidence no specific overt act is attributed to Jugal but the F. I. R. reads as if Jugal was the first to assault Tarini on the head. Then, again the F. I. R. shows not only that Jugal and Panchanan struck Tarini on the head but that Madan went on striking with a lathi. It was contended that this deviation from the case made out in the F. I. R. was done with a purpose so that the evidence may fit in with the findings of the Autopsy Surgeon. This is an aspect which I shall have occasion to consider later. P. W. 2 says that Panchanan hit Tarini on the head and thereafter he was hit by Madan. The witness was also assaulted by Madan on the head. He does not speak of any assult upon him by Thakurdas or Jugal. P. W. 3 Niranjan also speaks of assault on Tarini by Panchanan and Madan and upon Angshu by Madan and the witness further says that he was himself assaulted on the hand by Madan. It is also his evidence that Anshu sustained bleeding injury caused by axe by Thakurdas. Angshu, however, does not say so. P. Ws. 4 and 5 are two constables who were deputed to the. spot along with P. W. 15. P. W. 4 says that after reaching the *pot he saw that one man was being assaulted by 4 persons and that after seeing the assault the accused persons were arrested. His evidence, therefore, comes to this that all the 4 accused assaulted Tarini. And he did not see any assault upon anybody else. At least he does not say that he saw assaults upon anybody else. P. W. 5 has not spoken about the assault at all. P. W. 15 says that he saw from a distance that Tarini was being assaulted by some unknown persons by lathis. After reaching the paddy field he saw Tarini lying on the ground in an injured condition and also saw one of the brothers with injuries. He does not claim to have seen the actual assault on the brother. In cross-examination he makes it clear that he noticed Tarini being assaulted on the head by about 4 persons. They are all the alleged eye-witnesses to the occurrence.
9. P. W. 6 is a seizure list witness and ho states in his chief that the Daroga did not seize any Alamats from Kankrasole in his presence and that he signed the seizure list at the Police Station. In cross-examination he says that he saw Tarini lying injured at about 9.00 a. m. and that the police also went to the spot about half an hour to 45 minutes thereafter. Consequently, it follows that Tarini was already lying injured at the time when the witness came to the spot. The police having arrived still later could not therefore have seen the occurrence though claimed by them. P. W. 7 says that while he was passing along the road at about 9.30 a.m. he saw a 'marpit' going on as a result whereof one Tarini and an unknown person were injured. He does not say who were the assailants or who were the parties between whom the 'marpit' took place. P. W. 8 is another seizure list witness in respect of the seizure of paddy and straw (Ext. 2). Exhibit 2/1 is his signature. P. W. 9 Basudeb is a witness to the seizure of lathis and an axe under the seizure list (Ext. 3). He put his signature on the seizure list at about 4.00 p. m. on 29-11-1978. He did not see Tarini injured on the field. He did not go to the field at all on the morning on 29-11-1978. P. W. 10 is another signatory to Ext. 2. He says that one Khelaram Buskey has land close to the disputed lands. The paddy seized by I. O. was kept in the custody of Khelaram. He was examined by the I. O. but not as a witness at the trial. P. W. 11 is a Medical Officer attached to Raipur Primary Health Centre. He examined Angsu and found one cut injury on the head 2' X 1/2' on the upper anterior part on the left parietal region. He also found one swelling with lacerated injury on the occipital region and another swelling over the right arm. The injuries were simple in nature. He also examined Niranjan on 30-11-78 at 4.00 p. m. and found a swelling with bruises on the right hand. Angshu was examined on 29-11-1978 at about 7.00 p. m. Angshu was conscious and talking with the Doctor. It does not appear from the evidence of the Doctor that the patients gave any history as to how they came by the injuries. P. W. 12 speaks practically nothing and P. W. 13 was merely tendered and cross-examination was declined.
10. P. W. 14 Dr. D. Dhar held post-mortem examination on the identification of Constable No. 1070 Ranjit Banerjee in connection with Bankura P. S. U. D. Case No. 215 dated 30-11-1978. He found the following injuries.
(1) Incised looking injury 1 1/2' x 1/2' scalp deep on the left parietal eminence with haematoma on the entire head with clots under the scalp, with fracture of frontal parietals, temporals and occipital. Big clots of blood on the membrance under the bone and clots on, inside and under the brain substance were found,
(2) Abrasion on the lower of the right leg. The. injuries were anti-mortem and homicidal in nature. The head injury was serious and was sufficient in the ordinary course of nature to cause death. In cross-examination he states that he found only one injury on the head of the victim caused by one blow.
11. P. W. 16 is the Ohowkidar through whom the written complaint (Ext. l) was sent to the P. S. P. W. 17 is a witness to the possession of the land by the Nads. P. W. 18 filled in the formal F. I. R. P. W. 19 is the Junior Land Reforms Officer who held an enquiry regarding possession in connection with this case as requisitioned by the I. O. He has proved (produced?) a carbon copy of his report Ext. 5. Curiously his signature at the bottom of the copy is not in carbon process but appears to be in original. The original report is not forthcoming. Although the report is dated 26-4-1979, it does not appear either from the evidence or the report itself as to when the enquiry was held. If the enquiry was held contemporaneously with the incident, as it is likely to be, the report is incorrect to the extent that the Junior Land Reforms Officer gave the report after hearing both parties. By both parties he obviously meant the complainant party and the accused. It is significant that the accused were in custody up to Dec, 1978. P. W. 20 is the I. O. The I. O. prepared a sketch map but has not filed the same. He says that he did not find any blood on the ground at the P. O. but the other witnesses have said that Tarini and Angshu fell down with bleeding injuries and that blood fell on the earth. The I. O. did not seize any blood stained earth. The I. O. examined P. Ws. 2 and 3, the two most important eye-witnesses besides P. W. 1, On 5-4-1979. It was suggested to him that he had opened the case diary after hearing from P. W. 1 about the assault on Tarini. He admits having opened a case diary at 8.45 a. m. This is practically all the material evidence in the case.
12. The grievance of Mr. Mukherjee that there was discrepancy between the case as made out in the F. I. R. and as given at the trial appears to be well founded. According to the, F. I. R. Tarini was not only struck by Jugal and Panchanan but also by Madan who went on striking. Therefore, according to the F. I. R. Tarini must have received a considerable number of blows on the head inflicted by as many as three persons. The story changed during trial. There Jugal was not attributed any overt act while the story of Madan continuing the assaults was given up. Mr. Mukherjee argued that this was done with a purpose, namely, that the evidence must be made to fit in with the medical findings. We have already indicated that the Autopsy Surgeon was positive in his opinion that although there were several fractures of the skull with haematoma over the. entire head, the injury was caused by a single blow. This opinion was not sought to be shaken or even explained by recalling the witness. The evidence, therefore, runs counter to the story given at the trial not to speak of the story made out in the F. I. R. In the case of Ram Narain v. State of Punjab : 1975CriLJ1500 it has been observed that where, the direct evidence is not supported by expert evidence then the evidence, is wanting in the material part and it would be difficult to convict the accused on the basis of such evidence. Here the expert evidence and the direct evidence are patently in conflict.
13. Again the case made out in the F. I. R. is not the case put forth at the. trial as regards the manner of assault and the assailants. No doubt, an F. I. R. is a previous statement which can strictly speaking, be only used to corroborate or contradict the maker of it but omission of important facts affecting the probabilities of the case, it has been held in the case of Ram Kumar v. State of M.P. : 1975CriLJ870 , are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In the reported case the incident occurred at about 5.00 p. m. The F. I. R. was lodged by the father of the victim at 9.15 p. m. There is no mention in the F. I. R. that the daughters of the informant also saw the occurrence but they figured as eye-witnesses. In the context of that the above observations were made. In the case before us there is no case of omission of important facts in the F. I. R. but there certainly is exaggerations and false implications. On the principles held in the case cited, it may therefore be held that this is an aspect which not only affects the testimony of the maker but also affects the veracity of the entire prosecution case.
14. As regards the time of the incident Mr. Mukherjee contended that the. time hat been shifted with an oblique motive. According to the charge the time of the incident is between 8 to 9.15 a. m. P. W. 1 says that after hearing from Niranjan he went to the P. S. at 8.45 a. m. He was there at the P. S. for about 20 minutes and gave a written complaint at that time. Thereafter he returned to the place of occurrence. Consequently, it follows that the informant could not have seen the occurrence if his evidence as stated above be true. The incident in that event and as per the charge must have taken place before he went to the P. S. Therefore, the statement that he made at the P. S. in the first instance becomes of vital importance. But that statement is not forthcoming. The F. I. R. Exhibit 1 is a later document and the grievance is that it is a concocted and manufactured piece of paper made in collusion with the police. The reason why the initial complaint is not forthcoming, has not been explained. This apart there is another aspect of the matter, namely that even according to the F. I. R. it was received at the P. S. at 10.10 a.m. but it was not despatched until the next day. It is significant that some of the seizure list witnesses have stated that they signed the seizure list at 4.00 p. m. at the P. S. The grievance that the F. I. R. was prepared later than the time noted therein, in the circumstances and in the face of the fact that it was not forthwith despatched, does not seem to be entirely unfounded. The explanation for the delay in despatch as given by the I. O. is that it could not be despatched on the tame day since preparation of copies took sometime. The explanation is not at all satisfactory. Mr. Mukherjee referred as to the case of Ishwar Singh v. State of u. P. : 1976CriLJ1883 . In that case the F. 1. R. was lodged at 9.05 a. m. of 14-2-1973 and sent out from the P. S. on the next day, the time of despatch being not noted. As to the circumstance leading to the occurrence, there was variation between the F. I. R. and the evidence. In the context of that the Supreme Court observed that extraordinary delay in sending the F. I. R. is a circumstance which provides a legitimate basis for suspecting that the F. I. R. was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and set up a distorted version of the occurrence. In view of the fact that the case made in Court differed at least in two very important particulars from the case made in the F. I. R., the Court observed that the suspicion hardens into a definite possibility and the evidence of the eye-witnesses cannot be accepted in its face value.
15. It was further observed in the same case that non-examination of witnesses material for unfolding the prosecution case assumes importance and significance when there is discrepancy in the evidence and the version given in the F. I. R. It may be recalled that a suggestion was put to P. W. 2 that he himself along with Santi, Abani, Anil, Niranjan and Tarini went to the field at 6.30 a. m. and attacked the Lahas by latlhis and axe. The suggestion was of course denied. But P. W. 2 admitted that Abani was present at the time of the occurrence. About Anil he pretended lapse of memory. Anil and Abani certainly were material witnesses. But they have not been examined. One Khelaram has land nearby. He was the custodian of the seized paddy. He was examined by the I. O. but was withheld at the trial. The learned Judge in the Court below has observed that Khelaram. really was not a material witness and that therefore his non-examination is not a matter of much moment. In observing so the learned Judge has made extensive reference to the statements made by Khelaram under Section 161, Cr. P. C. We think that the learned Judge, went wrong in doing so. Khelaram certainly was a witness of importance and at any rate Anil and Abani were, admittedly present at the scene. Even though they are related as cousin brothers they were certainly less interested than the other witnesses examined. This apart there is evidence that a large number of people collected at the spot, some of whom presumably were not related to either. Non-examination of such witnesses again is a factor which is of considerable importance and significance.
16. As regards the actual assault as given in the F. I. R. and the evidence given at the trial there are undoubtedly some variations. We could have understood if the victims, namely Angshu and Niranjan had given out the history to the Doctor (P. W. 11) and named the assailants there. Not only that they did not give any history but the explanation for it as sought to be given by P. W. Angshu is patently untrue. He claims to have become unconscious after receiving the injury. But it appears from the medical evidence that he was conscious and in fact he was talking with the Doctor. And yet the doctor does not say that any names were disclosed to him. This witness though sent to the Health Centre immediately after the occurrence was not examined until 7.00 p. m. And the. other, namely, Niranjan was not examined until 4.00 p.m. of the next day. This is a circumstance which the prosecution has never explained. Apparently they could not have been examined at 7 p. m. of 29-11-1978 or 4 p. m. of 30-11-1978 if really they were sent to the Health Centre immediately after the occurrence. The evidence on the point is not free from doubt
17. It was then contended that there was absolutely no explanation for the delayed examination of these two witnesses by the I. O. They were, in fact, examined on 5-4-1979, that is to say, more than 4 months after the occurrence. In the case of Bala Krishna v. State of Orissa : 1971CriLJ670 it has been observed that unexplained and unjustifiable delay on the part of the I. O. in recording statement of material eye witnesses during investigation of murder case, renders evidence of such witnesses unreliable. In that case the material witness was examined 10 or 11 days after the incident. But here in the case before us they were examined more than 4 months after the incident. The learned Judge in the Court below seems to have explained the delay by reason of the fact that the two witnesses were themselves injured and treated at the hospital and that thereafter they were at times away from their house which might have accounted for the inability of the I. O. to examine them earlier. This explanation is not borne out by the record. P. W. 2 was released from the hospital on 30-11-1978. He says that after being released he went to the police station to hand over the medical report and that after the incident he remained at his house though from time to time he had to go outside. It is thus clear that he was available for examination on the very next day. As regards P. W. 3 his evidence is that after release from hospital he remained at his house for about 4 or 5 months. Therefore, there is no explanation for non-examination of this witness also with due promptitude as was expected in a murder case (in this connection see also the case of Bhagwan V. State of M. P. : 1980CriLJ1269 ;.
18. We have already stated that the time of the incident according to the charge was before the arrival of the police so that the evidence of P. Ws. 4, 5 and 15 is rendered unacceptable. It will bear repetition that even according to P. W. 6 the police arrived long after Tarini was seen by the witness to lie on the ground in an injured condition. Therefore, the time noted in the charge does not appear to be the time when the incident is alleged to have occurred. This apart there is reference in the charge to the assault being inflicted in furtherance of the common intention but the, charge was not framed with the aid of Section 34,1. P. C. We might have ignored this if the learned Judge ultimately found that the accused persona did in fact act in furtherance of common intention and then convicted the accused with the aid of Section 34. He has of course held that there was a common intention but then the convicted all the accused not with the aid of Section 34 on the theory of vicarious liability of all who shared the common intention, but they were held liable individually for the acts done by them as if each one of the accused committed acts individually which came within the meaning of Section 304, Part II, I. P. C. But certainly there is no evidence to warrant such a conclusion. Finally, Mr. Mukherjee contended that the identity of the deceased has not been properly established. His argument is founded upon the fact that the chain of evidence indicating that Tarini was transferred from Raipur Health Centre to Bankura Hospital and there he expired and that later he was identified by constable Ranjit Banerjee to the post mortem Doctor is wanting. P. W. 21 held the inquest on the basis of an information given by the Ward Master of the Hospital. The Ward Master has not been examined. The deceased was identified to P. W. 14 by a constable. The constable has not been examined. In the circumstances the identity of the deceased is not clearly established even though it may be likely that the deceased was none other than Tarini Nad, the brother of the informant. We could have ignored the lapse in the prosecution evidence in this regard if at least P. Ws. 1 to 3 had stated in their evidence that Tarini was dead or that he died of the injuries sustained in course of the occurrence. They have not said anything on that point
19. Considering all the circumstances of the case and the evidence on record we are unable to say that the prosecution has beenable to prove that the incident occurred in the manner and under the circumstances and at the time and place as alleged. They are accordingly entitled to the benefit of doubt The appeal accordingly succeeds and is hereby allowed. The order of conviction and sentence are. set aside. The appellants who are on bail be released from their bail bonds and the appellant be released forthwith.
Jitendra Nath Chaudhuri, J.
20. I agree.