JUDGMENT : Barman, J. - This is an appeal from an order passed by the Sessions Judge, Cuttack-Dhenknal, convicting each of the Appellants Madhusudan Ray, Judhistir Ray and Harekrishna Ray under Sections 147, 330 and 342 of the Indian Penal Code and sentencing them to rigorous imprisonment for six months, one year and a fine of Rs. 200/-, in default to undergo rigorous imprisonment for two months under the said sections respectively and convicting all other Appellants also under the said sections and sentencing them to rigorous imprisonment for three months, six months and one month under the said sections respectively; all the sentences to run consecutively. 2. All the nine accused persons before the trial Court were charged for having formed an unlawful assembly and having put six persons (hereinafter referred to as the victims) to various tortures with a view to extort confession that they committed the murder of one Ganeswar Ray and also for looting the house of two of the victims to the said tortures. Out of the nine accused persons sent up for trial, the accused Baina Ghadai was given the benefit of doubt and found not guilty and he was acquitted. The remaining eight accused persons who were convicted and sentenced as aforesaid are Appellants in the present appeal. 3. On May 30, 1955 one Ganeswar Ray was found missing. His dead body was found wrapped in a gunny bag lying on the hedge at a short distance from the house of Naran Bhol and Karuni Bhol. Presumably, the Appellants suspected six persons, namely, Naran Bhol Karuni Bhol, Dharmananda Panda, Abhiram Ray, Baishnab Charan Ray and Maheswar Ray of having committed the alleged murder. The Appellants and one Baina Ghadai (acquitted by the learned Sessions Judge) are alleged to have inflicted various tortures on these suspects with a view to extort confession that they committed the murder of the said Ganeswar Ray and it is alleged that they also looted the house of Naran Bhol and Karuni Bhol who are two brothers. All these nine persons were charged under Sections 147, 380, 342 and 330 of the Indian Penal Code. 4. In connection with the said murder case, information was lodged against Naran Bhol, Karuni Bhol and Dharmananda Panda. Ultimately, however, Naran Bhol alone was sent up for trial on a charge of murder u/s 302 of the Indian Penal Code. All these nine persons were charged under Sections 147, 380, 342 and 330 of the Indian Penal Code. 4. In connection with the said murder case, information was lodged against Naran Bhol, Karuni Bhol and Dharmananda Panda. Ultimately, however, Naran Bhol alone was sent up for trial on a charge of murder u/s 302 of the Indian Penal Code. This is the back ground in which both the murder case as also this case came up for trial before the learned Sessions Judge and the judgments in both the cases were pronounced simultaneously. Incidentally I understand that the accused in the murder trial was acquitted. 5. The sequence of events, as appears from the judgment of the learned Sessions Judge, is as follows: After the discovery of the dead body of Ganeswar Ray near the house of Naran Bhol, the Appellants headed by Appellant No. 1 Madhusudan Ray and his son (not an accused) came to the house of Naran Bhol and assaulted him. He raised a hulla which attracted his brother Karuni Bhol (P. W. 1). On seeing the assault on his brother Naran Bhol and the presence of the accused persons there, Karuni Bhol ran inside the house of one Bhabani Sahu (P. W. 13), a neighbour. Karuni was dragged out of that house. Then both Naran Bhol and Karuni Bhol were tied together in a rope and wee taken to the house of Dharmananda Panda (P. W. 3). Thereafter, as the prosecution story was Dharmananda Panda was dragged to the spot from his shop and was also tied in a rope. All the three victims then were taken to a place called Mahadeb Padia (temple of Mahadeb). Then the accused persons are alleged to have forcibly entered the house of Naran Bhol and Karuni Bhol and ransacked the house and committed loot of several valuables including gold and silver ornaments, rice and paddy. Then the accused persons proceeded to the house of Abhiram Ray, broke open the window and effected entry into the house. Abhiram Ray was not there as he had gone to the house of his agnatic relation Maheswar Ray, a close door neighbour. His son Baishnab Charan Ray who was in the house is alleged to have been dragged out of his sleeping room, assaulted and taken to the same Mahadeb Padia. Abhiram Ray was not there as he had gone to the house of his agnatic relation Maheswar Ray, a close door neighbour. His son Baishnab Charan Ray who was in the house is alleged to have been dragged out of his sleeping room, assaulted and taken to the same Mahadeb Padia. The accused persons, as alleged, then entered the house of Maheswar Ray after breaking open two windows and dragged both Maheswar Ray and Abhiram Ray therefrom, assaulted them and took them to the same Mahadeb Padia. It is alleged that before they were so taken, the Appellant Madhusudan Ray set fire to the Bhagabatghar of Maheswar Ray in front of his house. In Mahadeb Padia the non-accused Rajkishore Ray (son of the Appellant Madhusudan Ray) brought human stool in a twig and gave it to the Appellant Harekrushna Ray who touched the stool in the mouth of all the victims while demanding a confession from them of having committed the murder of Ganeswar Ray. Then the six victims were taken to the place where the dead body was lying and made them sit under the scorching sun without giving them a drop of water to drink. They did not listen to any protest and assaulted the victims. The victims Naran Bhol, Karuni Bhol and Dharmananda Panda in tied condition and the other three in untied condition were so detained there till the arrival of the police. This, in short, is the narration of the incident as found by the learned Sessions Judge. 6. The main consideration in the present appeal is whether this finding of the 1 earned Sessions Judge finds corroboration by the evidence of the witnesses adduced before him. 7. Mr. Srinibas Misra learned Counsel appearing for the Appellants argued on the inherent improbability of the story sought to be made out by the prosecution. One convincing feature of the defence case was that the learned Sessions Judge in material particulars disbelieved the principal witnesses in this case by particular reference to the discrepancies in their evidence. The learned Sessions Judge, in fact, disbelieved the incident of setting fire and the story of the application of night-soil in the mouth of the victims in Mahadeb Padia. The rejection of the evidence of the witnesses in these vital particulars makes the evidence of the witnesses unreliable with regard to the other points also. The learned Sessions Judge, in fact, disbelieved the incident of setting fire and the story of the application of night-soil in the mouth of the victims in Mahadeb Padia. The rejection of the evidence of the witnesses in these vital particulars makes the evidence of the witnesses unreliable with regard to the other points also. It is not safe to rely on the evidence of such witnesses when they have been disbelieved on material points. 8. Then again, while acquitting the accused No. 9 Baina Ghadai before him, the learned Sessions Judge gave him the benefit of doubt in these circumstances. In paragraph 20 of his judgment he dealt with this aspect of the case. He rightly pointed out the discrepancies in the prosecution evidence. The prosecution evidence is discrepant on the question whether the victim Baishnab Charan Ray was taken to Mahadeb Padia first, that is, before Abhiram Ray and Maheswar Ray were taken there they were taken together. Those who spoke that the victim Baishnab Charan Ray was taken first, they said it was the accused Baina Ghadai who took him there. At the same time the evidence is also there that Baina Ghadai also entered into the house of Maheswar Ray. If Baina Ghadai had taken Bashnab Charan Ray to Mahadeb Padia first, then it is not intelligible how he could at one and the same time immediately join the forcible entry into the house of Maheswar Ray. The learned Sessions Judge expressed that it was a doubtful feature of the evidence against the accused Baina Ghadai. Furthermore, there was omission in the F.I.R. to mention his name specifically as one of the culprits and the learned Sessions Judge rightly gave him the benefit of doubt. In my view the learned Sessions Judge should have extended the benefit of doubt to other accused persons as well. He should have taken into consideration the pieces of incidents, taken as a whole, and treated them as one entire connected story. In view of the missing links in the story, evidence lacking on some vital points and apparent discrepancies in the evidence of the witnesses, the learned Sessions Judge should have found that the whole structure of the prosecution case was seriously affected. It is from this angle that I now proceed to consider the entire case as follows. 9. In view of the missing links in the story, evidence lacking on some vital points and apparent discrepancies in the evidence of the witnesses, the learned Sessions Judge should have found that the whole structure of the prosecution case was seriously affected. It is from this angle that I now proceed to consider the entire case as follows. 9. The allegation against the Appellants Madhusudan Ray, Judhistir Ray and Harekrushna Ray was that they took a leading part in all the incidents. The charge against them u/s 330, Indian Penal Code, for causing hurt to extort confession was sought to be established by the prosecution. The evidence, however, in this context does not appear to me to be convincing. The prosecution witnesses said that these three Appellants tied the six victims. The defence case was that there was no evidence of causing injury because the doctor's reports do not support the prosecution story. I am not satisfied on evidence that the prosecution was able to establish the charge u/s 330, Indian Penal Code. The three Ray-Appellants were there at the initial stage and it does not appear from the evidence what part they each played in the matter of causing hurt to the victims in order to extort confession from them. In this context I should refer to paragraph 24 of the judgment of the learned Sessions Judge where he dealt with these Ray-Appellants and gave a finding that they were guilty for having taken a leading part in all the incidents and sentenced each of them to one year's rigorous imprisonment u/s 330, Indian Penal Code. It is not clear to me on what evidence the learned Sessions Judge came to this conclusion. On the evidence as adduced, I cannot uphold the finding of the learned Sessions Judge on this count. 10. As regards the charge of wrongful confinement u/s 342, Indian Penal Code, paragraphs 13 of the judgment of the learned Session Judge is relevant. In the last sentence the learned Sessions Judge came to a finding that the three victims Naran Bhol, Karuni Bhol and Dharmananda Panda were assaulted and also were tied with rope. This conclusion, however, does not follow from the preceding sentences in the said paragraph which refer to the discrepancies in the evidence of the witnesses. In the last sentence the learned Sessions Judge came to a finding that the three victims Naran Bhol, Karuni Bhol and Dharmananda Panda were assaulted and also were tied with rope. This conclusion, however, does not follow from the preceding sentences in the said paragraph which refer to the discrepancies in the evidence of the witnesses. In fact, in the two sentences immediately preceding the concluding sentence in the said paragraph the learned Sessions Judge observed that the witnesses also made discrepant statements as to which of the accused did exactly what, in the whole episode and further that discrepancy was noticeable in the statement of P.W. 1 and P.W. 13 as also of the other witnesses speaking regarding the other incidents. Then earlier in the said paragraph he expressed that doubtless there were discrepancies in the statements of the witnesses by particular reference to the evidence of different witnesses mentioned in the said paragraph. In this context the evidence of P. Ws. 2, 3, 4, 9, 10 and 13 is relevant. Paragraph 14 of the judgment is also pertinent in this context. The learned Sessions Judge referred to the evidence of the Junior Section 1. (P. W. 17) whose evidence was given a complete goby by the other witnesses (P. Ws. 6. 7 and 8). According to P.W. 17 he found two of the victims-Naran Bhol and Dharmananda Panda in actual tied condition and that Abhiram, Karuni and Maheswar were sitting by their side. He also seized the coir rope (M.O. XIII) that tied the two Naran and Dharmananda. The witnesses P.W. 7 and P.W. 8, said that they found three of the victims-Naran, Karuni an Dharmananda.-had been tied in Mahadeb Padia; and the remaining three victims were sitting by their side. P.W. 6 said that he saw the said three victims including Karuni Bhol in tied condition with plough ropes. They all spoke of the retention of all the six victims in Mahadeb Padia, The F.I.R. (Ext-I) mentioned that P.W. 1 Karuni Bhol had been untied and had been made to sit along with the other three victims-Abhiram Ray, Madhusudan Ray and Baishnab Charan Ray. These were discrepancies in material particulars tending to show that there was, in fact, no detention of the victims as alleged. These were discrepancies in material particulars tending to show that there was, in fact, no detention of the victims as alleged. The situation indicates that the alleged detention, if any, of the victims at Mahadeb Padia because of possible suspicion against the victims that was aroused in the village in connection with the murder of Ganeswar Ray. The defence case was that, conceding there was detention of the victims as suspects in connection with the murder case, it was justified because the victims were suspected and they were detained till the arrival of the police. 11. As to forcible entry and loot from the house of Naran Bhol and Karuni Bhol, there was apparent discrepancy as to the time when the alleged looting took place. The learned Sessions Judge gave a finding on the discrepancy and he expressed in the judgment that there were mistakes in order of the incidents unintentionally while giving out in a narrative and therefore he attached no importance to such discrepancies which he found. The learned Sessions Judge also found that P. Ws. 4 and 10 (wives of Naran Bhol and Karuni Bhol) had presented the facts in an exaggerated form but still the learned Sessions Judge expressed that he had little doubt in view of the evidence that there was forcible entry in the house of Naran Bhol. I am constrained, however, to take a different view on the very same finding of mistakes and discrepancies in the evidence as expressed by the learned Sessions Judge. In my opinion, the learned Sessions Judge should have given the benefit of doubt to the Appellants as he did in the case of other co-accused Baina Ghadai which I have already discussed above. 12. In paragraph 16 of his judgement, the learned Sessions Judge further dealt with the alleged loot at the house of the said Bhol-victims on which he found that the prosecution had failed to establish a case of theft u/s 380, Indian Penal Code. 12. In paragraph 16 of his judgement, the learned Sessions Judge further dealt with the alleged loot at the house of the said Bhol-victims on which he found that the prosecution had failed to establish a case of theft u/s 380, Indian Penal Code. On the strength of this finding that the entry into the house was not for theft, one can reasonably make an inference that there was no possible reason why the Appellants should enter the house of the said Bhol-victims, because on the further finding of the learned Sessions Judge that the said Bhol-victims at the time were not in their house, there could be no occasion for the Appellants entering the house of the Bhols for extorting confession from them at their house where they were not at that point of time. 13. As to the discrepancy in the evidence against the Appellants individually the learned Sessions Judge in paragraph 18 found that the witnesses were greatly discrepant and they were discrepant as to who assaulted whom and which of the accused made forcible entry into the three different houses. In view of such obvious discrepancies, the learned sessions Judge should have given the Appellants the benefit of doubt. I should here deal with the F.I.R. Ext. 1. There was no mention of the victims having been taken to Mahadeb Padia which has figured so prominently in the evidence of most of the prosecution witnesses. This omission naturally through suspicion on the truth of the prosecution case. It further appears from the F.I.R. that the alleged looting took place after Naran Bhol and Dharmananda Panda were tied at the house of Dharmananda Panda, But there are different versions as to at what stage of the episode the alleged looting took place actually, In the ultimate analysis, taking the case as a whole and weighing the evidence of the witnesses from the beginning to the end I find that there are several different versions as to the sequence of events, namely one version in the F.I.R. the second vision in the prosecution story as sought to be made out in evidence of the witnesses and the third in finding of the learned Sessions Judge in his Judgement. In my opinion, all these three different versions contradict each other and I cannot support a conviction in the teeth of such obvious contradictions. In my opinion, all these three different versions contradict each other and I cannot support a conviction in the teeth of such obvious contradictions. His Lordship discussed the evidence of the witnesses. 14. The most outstanding feature in this case was the doctor's report (Ext. 2) to the Sub-Inspector of Police. On the same page of 'the document the police officer asked the Medical Officer in writing stating that he noticed a number of injuries on the person of the injured' and he was in doubt as to how those injuries were not present when the injured was produced before the Medical Officer and asked for clarification. The doctor himself (P. W. 2) in his evidence said that after he had given certificates the police wanted him to note some more injuries on the persons of Dharmananda Panda, Naran Bhol and Karuni Bhol and Baishnab Charan Ray, The police requests to the doctor are Exts. 2(a), 3(a), 4(a) and 5(a) respectively. The investigating police officer (P. W. 18) in his evidence admitted that he received a reply from the doctor but the reply could not be produced. Suppression of this second report of the doctor is likely to lead one to suspect that there have been some manipulations in the evidence with regard to the injuries alleged to have been inflicted on some of the victims in this case. The second report of the doctor was a vital document which the prosecution should have produced at the trial. The Government Advocate tried to explain away the non-production of the second medical report. He stated that the Sub-inspector of police in several police requisitions all dated June 1, 1955 for examination of the six victims individually (Exts. 2/1, 3/1, 4/1, 5/1, 6/1, and 7/1) had recorded the injuries they each are alleged to have sustained. On the same day (June 1, 1955) the Medical Officer between 5 and 5. 30 P.M. in his several reports (Exts. 2 to 7) forwarded the results of his examination of the alleged victims. Thereupon the Sub-Inspector referred back to the doctor pointing it out and asked for clarification (Exts. 2(a), 3(a), 4(a) and 5(a). Admittedly the second report was given by the doctor but it was not disclosed. The learned Government Advocate could not explain why the second report was not produced. Thereupon the Sub-Inspector referred back to the doctor pointing it out and asked for clarification (Exts. 2(a), 3(a), 4(a) and 5(a). Admittedly the second report was given by the doctor but it was not disclosed. The learned Government Advocate could not explain why the second report was not produced. But, he tried to justify the conduct of the prosecution by saying that sum non-production had not caused any prejudice to the case and therefore he submitted that in the absence of such prejudice this lacuna in the prosecution case should be ignored. I am afraid cannot accept this contention of the learned Government Advocate. It appears that the doctor's first report was given on June 1, 1955 (Exts. 2, 3, 4, 5, 6 and 7). It was not until June 27, 1955, that is to say, 26 days after the doctor's first report, that the Sub-Inspector of Police asked for clarification (Exts; 2(a), 3(a), 4(a) and 5(a). There is no evidence explaining this delay. Then the doctor's second report was not disclosed. These circumstances naturally rouse suspicion. 15. Mr. Srinibas Misra, learned Counsel appearing for the Appellants cited before me a decision of the Court in Kashinath Patro and Ors. v. State 24 Cutt. L.T. 23, in support of the proposition that once it is clear that the witnesses are suppressing material portions of the occurrence it is difficult to accept their evidence. In that case, some of the Appellants were charged for alleged murder u/s 302/34, Indian Penal Code, and others under Sections 147 and 323, Indian Penal Code. The most striking feature in the case was the absence of an agreed version as to how the alleged occurrence took place. The facts there, were that the F.I.R. version had been materially facts there, were that the F.I.R. version had been materially changed when the witnesses gave evidence in the Sessions Court. The witnesses at the trial had completely suppressed the injuries found on the accused persons and thereby discredited their own evidence. There were also material discrepancies between their evidence in Court and their previous statements before the police. In paragraph 9 of the judgment Narasimham, C.J. observed that when the F.I.R. version and the case put forward in Court do not tally, it will be extremely hazardous for a Court to conjecture as to how the fight must have taken place. There were also material discrepancies between their evidence in Court and their previous statements before the police. In paragraph 9 of the judgment Narasimham, C.J. observed that when the F.I.R. version and the case put forward in Court do not tally, it will be extremely hazardous for a Court to conjecture as to how the fight must have taken place. The nature of the injuries sustained by both sides lent some support to the view that there was some sort of mutual fight during the course of which the deceased sustained fatal injuries. But the evidence of the prosecution witnesses as to how he was assaulted and who his assailants were could not be accepted. In the result it was held that the Appellants could claim the benefit of doubt and accordingly the conviction and sentence were set aside and the Appellants were acquitted in that case. 16. There is another striking aspect in this case. It appeal's that the present case was set up with a view to divert the attention of those in charge of the prosecution from the murder case at the instance of the interested persons. It is obvious that more prominence was given to the counter-case against the Appellant. This case and the murder case were investigated simultaneously. When the Investigating Officer P.W. 18 came to the village, he found the six victims sitting in the school when he arrived. They were watched by Junior S.I., A.S.I., constables and choukidars. He took down the statements of the six victims who were so detained after taking over charge of investigation into the murder case from the Junior S. 1. (P. W. 18) in his evidence said that he made no search in the night on 31-5-1955. 17. The learned Government Advocate appearing for the State very fairly argued that there may have been embellishment in the prosecution story; but the grain must be separated from chaff. Be attempted to support the findings of the learned Sessions Judge who according to him, had rightly eliminated those portions of the prosecution case which were not established by evidence, namely, the alleged setting fire to Bhagabat Ghar and night-soil story, theft and other aspects as discussed in his judgment. Be attempted to support the findings of the learned Sessions Judge who according to him, had rightly eliminated those portions of the prosecution case which were not established by evidence, namely, the alleged setting fire to Bhagabat Ghar and night-soil story, theft and other aspects as discussed in his judgment. The learned Government Advocate in support of the findings of the learned Sessions Judge argued generally that the learned Sessions Judge had scanned the evidence on broad facts and that such findings were based on evidence as was accepted by him. But I cannot accept this contention. In the present case the chaff was so mixed up that it could not be separated from the grain. 18. In the ultimate analysis, in view of suppression of material documents, discrepancies in the sequence of events and some of the important witnesses having been disbelieved in material particulars as aforesaid, the Appellants should be given the benefit of doubt as in the case of the accused Baina Ghadai. 19. This appeal is therefore allowed. The order of conviction and sentence of all the Appellants is set aside and the Appellants are acquitted. Appeal allowed. Final Result : Allowed