JUDGMENT : Das, J. - This is an appeal by the Appellant, Biswanath Panda against his conviction under part II of Section 304 of the Indian Penal Code and the sentence of rigorous imprisonment for four years. Originally, the Appellant was charged under Sections 302 and 324 of the Indian Penal Code. He had been acquitted of both the charges and is convicted as stated above. The charge was for having committed the murder of one Bhaira Swain in village Bhubanpati within the limits of Brahmgiri police Station in the district of Puri by shooting him with his gun on July 30, 1957. He was further charged for having voluntarily caused hurt by his gun to Syama Swain and Uchhab Bhoi during the same occurrence u/s 324 of the Indian Penal Code of which charge be stands acquitted. 2. The prosecution case, shortly stated, is that the Appellant, Biswanath Panda of Toran in Sadar Police Station of the district of Puri was on the date of occurrence at his Khamar house at Bhubanpati. His uncle Mohanlal Panda, who lives joint with him ordinarily stays in the town of Puri where he was working as a Pleader's clerk, and subsequently, joined certain other service. For the maintenance of himself and his family at Puri, he would require rice and paddy to be supplied from the joint Khamars' of the family from different villages in the district of Puri. Appellant Biswanath was working as a Sub-Inspector of Police which office he resigned in about the year 1954 and took up the management of the Khamar houses belonging to the joint family situated in different villages. P.W. 1 and the Appellant had two other cosharers, namely, Upendra Panda and Gohardhan Panda who live at village Toran. Prosecution alleged that the Appellant had Rs. 0-8-0 share in the joint family properties and there was no partition of the family properties by metes and bounds. Until the marriage of the daughter of Mohanlal, there appears to have no trouble in the joint family, but dissensions arose between Mohanlal and the Appellant Biswanath since March, 1957, when the marriage of Mohanhal's daughter took place. Mohanlal's daughter was married to one Sudarsan Misra, who according to the prosecution, was also present at the time of occurrence in village Bhubanpati. Mohanlal's daughter was married to one Sudarsan Misra, who according to the prosecution, was also present at the time of occurrence in village Bhubanpati. The prosecution alleged that Biswanath did not supply the necessary funds for the marriage, and accordingly, the dissensions arose and the feelings gulf widened as time passed on. The result was that he stopped supplying rice and money to Mohanlal for his maintenance at Puri. On July 8, 1957, Mohanlal went to Jania for selling certain paddy from out of paddy pits (Khani). This Khamar at Janla was admittedly in charge of the Appellant and one Markand Jena was managing at the locality for. Biswanath. Markand Jena did not allow Mohanlal to sell the paddy and threatened him to be shot with 8 gun if he comes for that purpose. Accordingly, Mohanlal recorded a station-diary entry (Ext. 1) at Brahmagiri Police Station on July 9, 1957. It was alleged by the prosecution that Upendra. Panda and Pankaj Dalai contacted Appellant Biswanath and assured Mohanlal that sufficient quantity of rice and cash would be supplied to him and a partition would be effected amicably within fifteen days. On July 21, 1957. Mohanlal made another attempt to get paddy by going to Ranpada, a neighbouring village of Bhubanpati. There again he received information from the Assistant Sub-Inspector of Brahmagiri Police Station that partition would be effected amicably by selecting. 'Bhadralogs'. Nothing apparently happened. Therefore, on July 29, 1957, Mohanlal went to Bhubanpati accompanied by Bhaira Swain, the deceased, Syama Swain (p.w. 5) of village Balihat and his son-in-law, Sudarsan Misra to bring paddy from the joint Khamar. They halted for the night at Ranpada in the school building and next morning Mohanlal engaged Uchhab Bhai (p.w. 6) of Ranpada for carrying paddy. Thereafter, in the company of these people he proceeded to Bhubanpati leaving instructions with Sudarsan to engage more Bhois for carrying paddy. According to the prosecution, it was at about 6 A.M. that these people reached the Khamar and found the front door closed. Mohanlal knocked at the door calling 'Bisi, Bisi'. According to the prosecution, his companions, Bhaira Swain, Syama Swain and Uchhab Bhoi were standing at a distance at the Danda. Within a-few minutes of the knocking at the door, a gun was fired through a hole in the kitchen wall towards the Danda and all the three companions of Mohanlal were injured. According to the prosecution, his companions, Bhaira Swain, Syama Swain and Uchhab Bhoi were standing at a distance at the Danda. Within a-few minutes of the knocking at the door, a gun was fired through a hole in the kitchen wall towards the Danda and all the three companions of Mohanlal were injured. All of them crawled to a certain distance and one of them fell down dead near a Sijubuda opposite to the Khamar Bad. Mohanlal and the other two persons fled away for their life. The prosecution case further is that Bhaira Swain expired at the spot, but later was removed into the courtyard of the Khamar by Biswanath Panda's people. They also set fire to the thatch of the Khamar and put it out after a while when a small portion was burnt. Chowkidar Bhikari Mallik of Madapara arrived there and a written report (Ext. B) was sent through him by the Appellant to the Police Station alleging that he was attacked by a mob with deadly weapons and in self-defence, he fired a gun and injured two persons. This report was received by the Assistant Sub-Inspector of Police at the Police Station at 7 A.M. The Assistant Sub-Inspector of Police made a station-diary entry as the officer-in-charge of the Police Station had gone to the muffasil in connection with certain other investigation. Thereafter he proceeded to the spot for verification of the matter. On arrival, he found the dead body in front of the bed room inside the Khamar house and drew up the first information report (Ext. 13) on hi own information and registered a case u/s 302 I.P.C. Although he registered a case u/s 302 Indian Penal Code, held inquest over the dead body at 11 a.m. and made arrangements for forwarding the dead body for post-mortem examination at Puri, he did not arrest the Appellant then and there. The post-mortem, however, was held by p.w. 8 the following day at about noon. In the meantime, Mohanlal appeared at the Police station at Brahmagiri at about 9 a.m. on July 30. 1927 and filed a written report before the constable in charge of the diary and proceeded to Puri as he had to attend to the injuries on Syama Swain (p.w. 5). In the meantime, Mohanlal appeared at the Police station at Brahmagiri at about 9 a.m. on July 30. 1927 and filed a written report before the constable in charge of the diary and proceeded to Puri as he had to attend to the injuries on Syama Swain (p.w. 5). It is also the prosecution case that since the Doctor at Brahmagiri was not available and as the condition of p.w. 5 was rather serious, he was removed to Puri in a bullock-cart. P.W. 5 on arrival at Puri was admitted into the hospital and treatment was arranged. Certain pellets were extracted from his body. It is also reported that there were some more pellets still inside his body. The other injured, Uchhab Bhoi (P.w. 6) was sent for medical examination on August 6, 1957 by the Circle Inspector and he was examined by p.w. 15. He had also some pellets embedded inside his body and they were extracted by Doctor P.V. Raghav Rao (vide Ext. 19). 3. The Assistant Sub-Inspector of Police on arrival on July 30, 1957 found a hole in the kitchen wall of the Khamar on the northern side opening towards the Danda. He also found a linear mark on the surface of the hole showing as if a hard and long material was placed over it. The hole appeared to have been recently cut. On that day, he also found bullet marks on a Barkoli tree standing opposite to the hole. On the wall of Dhoi Padhan opposite to the Khamar Bari, he also found marks of bullets. A portion of the thatch of the Khamar on the north western side of the kitchen aver an area of It cubits was found to have been burnt. The Assistant Sub-Inspector further found on the northern fence of the Bad of the Khamar a young coconut tree, a Siju thorn and Jui plant had bullet marks. He, however, did not notice any mark of violence or gun-fire inside the Khamar courtyard although there were several plantain trees and others trees in the courtyard. At the instance of the Appellant he found a short wooden lathi which was lying near a sofa in the bed room of the Appellant and a broken earthen spot said to have been broken by the striking of the lathi. At the instance of the Appellant he found a short wooden lathi which was lying near a sofa in the bed room of the Appellant and a broken earthen spot said to have been broken by the striking of the lathi. He also seized a single barrel 12 bore gun bearing No. 367 (M.O. I), 7 live cartridges (M.O. III), one fired cartridge (M.O. IV) and a licence book (M.O. II) from the bed room of Biswanath Panda. After having made the seizures, he proceeded to Puri to take instructions from the Inspector of Police of the sadar Police Station that night leaving the Appellant Biswanath Panda in charge of the Duffadar and Chowkidar at the Khamar house. The Inspector (p.w. 17) met him at Puri at 11 P.M. and directed him to return immediately to the spot to arrest the accused and guard the spot until his arrival for taking up investigation. The Assistant Sub-Inspector returned the same night to Bhubanpati and reached there the following morning at 8 a.m. and arrested the Appellant Biswanath Panda. At the time of his arrest, he complained of a pain in his ankle of the left leg which was swollen and accordingly, a requisition was issued for his medical examination by the Brahmagiri medical officer. On his return, on July 31, 1957. He, however, found the hole in the kitchen wall to have been closed by fresh clay. This was preserved in the same condition till the arrival of the Inspector of Police on August 2, 1957. The Appellant thereafter was forwarded to the court at Puri on July 31, 1957 and on his way he was examined by the medical officer at Brahmagiri (d.w. 1) who found a diffused bruise on the left ankle joint and dorsum of the left foot. There was severe tenderness on the middle and front side of the left ankle joint. He suspected fracture and dislocation of the ankle joint for which he advised the Appellant to attend the General Hospital at Puri for X-ray examination. His opinion regarding the nature of the injury, however, was reserved though in his opinion, the injury might have been caused by a hard blunt weapon like a lathi. The Appellant was remanded to jail custody on August 1, 1957. His opinion regarding the nature of the injury, however, was reserved though in his opinion, the injury might have been caused by a hard blunt weapon like a lathi. The Appellant was remanded to jail custody on August 1, 1957. When he was examined by the jail doctor (p.w. 16) on August 2, 1957, the doctor did not find any injury on the body of the Appellant nor did he allege to have complained of any pain or swelling, and consequently, the X-ray examination was not arranged. The Inspector of Police (p.w. 7) arrived at the spot on August 2, 1957. On his arrival, he prepared the spot map (Ext. 23) and seized the branches of the Barkoli tree (M.O. VIII), the branch of coconut tree (M.O. IX), Jui branch (M.O. X), Khamba Siju thorns (M.O. XI) containing pellet marks, small pieces of Khadi Siju branch (M.O. XII), four pieces of bamboos (M.O. XIII) and half burnt straw (M.O. XV). He also noticed fresh clay plastered into the hole in the Khamar kitchen wall which he got removed. After removing clay he measured the hole which was 7" x 5" at a height of 4 from the ground level on the outer side. The fire arms and the objects containing pellet marks and the extracted pellets were sent to the Ballistic Expert at Patna who submitted his report (Ext. 24) after firing a test cartridge (M.O. V) from the S.B.B.L. gun (M.O. I) and found the fired cartridge case had some marks similar to the empty cartridge case (M.O. IV) received by him and that they had identical striker and breech face markings on their percussion caps caused by having been struck by the same firing pin in a weapon. The Expert found all the 26 pellets received by him were deformed led pellets of No. B.B shot cartridge. But it was not possible to identify the weapon from which these had been fired, nor was it possible to identify the particular fired cartridge cases in which these had been contained. The fired cartridge case or case marked X contained 86 pellets when it was loaded. 4. But it was not possible to identify the weapon from which these had been fired, nor was it possible to identify the particular fired cartridge cases in which these had been contained. The fired cartridge case or case marked X contained 86 pellets when it was loaded. 4. From the injuries as noted in the post-mortem report on the person of Bhaira Swain and in the injury report of Syama Swain, it appeared from the nature and spread of the shots that these persons had been hit by gun fire inflicted from a range of approximately 30 according to the Expert. The pellets extracted from their injuries were of No. BB size which indicated that they were shot with cartridges loaded with BB shots. The small Jui plant contained some puncture marks which might have been caused by pellets resulting from gun fire, but it was not possible to say if these had been caused by BB shots. It was also not possible to say if the marks in the coconut branch, Barkoli branch and Siju thorns had been caused by pellets. 5. There was a counter case registered against Mohanlal and to others resulting from the same occurrence as a consequence of the report submitted by the Appellant Biswanath Panda as per Ext. B. Both the cases were investigated simultaneously and the Inspector of Police submitted chargesheet in the counter case u/s 143 of the Indian Penal Code. But this case as also the counter case were committed to the court of sessions and each was tried separately by the Sessions Judge. We are not concerned, at the present moment, with the counter case, but are concerned with the case against the present Appellant, who stood charged under Sections 302 and 324 of the Indian Penal Code. 6. The defence of the Appellant was a plea of not guilty. His whole defence was that he was separate from Mohanlal by an amicable partition long before the occurrence and that after the marriage of Mohanlal's daughter he was instigated by his son-in-law, Sudarsan Misra to reopen the partition, and accordingly, Mohanlal collected Gundas to loot the paddy from the Khamar at Bhubanpati and other places in his possession. His whole defence was that he was separate from Mohanlal by an amicable partition long before the occurrence and that after the marriage of Mohanlal's daughter he was instigated by his son-in-law, Sudarsan Misra to reopen the partition, and accordingly, Mohanlal collected Gundas to loot the paddy from the Khamar at Bhubanpati and other places in his possession. On the night of occurrence, that is July 29, 1957 he was sleeping in his Khamar with his Gomasta, Haradhan Padhan and Khamaroi Jaga Swain and before dawn when Jaga Swain opened the front door to go out for easing, Mohanlal Panda rushed into the courtyard with an armed mob of 100 to 150 persons carrying bhallis, tents and thengas etc. and began to surround him in his bed room and attack him with bhallis. One of the members of the unlawful assembly threw a short wooden lathi on him which struck him on his left ankle and broke the earthen pot. He then picked up his gun and loaded it with a BB cartridge meant for shooting birds and asked the mob to get away, but they did not pay any heed to it on the other hand, they attempted to enter inside with the bhallis and in self defence he fired his gun at the mob as a result of which two persons were injured, one of whom was carried away by the mob and that other person remained in front of the bed room in the courtyard. After the departure of the mob, the villagers came and informed him that the Khamar thatch was burnt by the mob which they put out subsequently and the injured person was given misri water to take. Chowkidar Bhikari Mallik arrived in the meanwhile and a report was sent through him to the Police Station. Before the arrival of the Assistant Sub-Inspector of Police, the injured had expired. It was however denied that the gun was fired through the hole in the kitchen wall. According to the defence, there was no such hole in existence or that the deceased Bhaira Swain was removed from the Danda into the courtyard after the departure of the mob. Thus, the defence cash was that the firing of the gun by the Appellant was done entirely in exercise of the right of private defence and that thereby he had not committed any offence. 7. Thus, the defence cash was that the firing of the gun by the Appellant was done entirely in exercise of the right of private defence and that thereby he had not committed any offence. 7. The learned Sessions Judge, on a consideration of the evidence on record, came to the conclusion that the incident of gun fire took place at dawn before the villagers were awake and not on the broad day light as attempted to have been proved at the trial. He further found that Mohanlal went to the place of occurrence with 10 or 15 persons holding sticks and sacks and not with empty hands. At the trial, the Assistant Sub-Inspector of Police also admitted some of his companions to be Gundas. Naturally, the learned Sessions Judge addressed himself the question; which was really in controversy, as to whether the scene of occurrence was inside the courtyard of the Khamar house or in the Danda. He, eventually, found that the incident took place in the Danda and the gun was fired through the hole in the kitchen wall. He, however, found that the prosecution had not been able to prove beyond all reasonable doubt that the Appellant was guilty of a charge u/s 302, but while believing the eye-witnesses he came t the conclusion that the had no intention to kill the deceased. Accordingly, he convicted the Appellant under Part II of Section 304 of the Indian Penal Code. He was found not guilty of the other charge u/s 324 for having caused the injury on Syama Swain and Uchhab Bhoi and consequently, stood acquitted. 8. Mr. Kanoongo, learned Counsel on behalf of the Appellant raised an interesting point of law besides certain factual questions. He contended that the prosecution was guilty of suppression of material documents and witnesses, and accordingly, it affects the credibility of the direct witnesses to the occurrence. His main argument was that in view of the evidence of the Ballistic Expert; tire Appellant is entitled to an acquittal. According to the Ballistic Expert the range of the gun had been found to be 30 feet, whereas the prosecution evidence had consistently been that the gun was fired at a range of 10 feet. His main argument was that in view of the evidence of the Ballistic Expert; tire Appellant is entitled to an acquittal. According to the Ballistic Expert the range of the gun had been found to be 30 feet, whereas the prosecution evidence had consistently been that the gun was fired at a range of 10 feet. The learned Sessions Judge after heaving taken into consideration the length of the kitchen room came to the conclusion that the gun might have been fired at a range of 20 feet. The evidence on this point is that of p.ws 2, 3, 5, 6 and 17. P.Ws. 2, 3, 5 and 6 are the alleged eye-witnesses to the occurrence, p.ws. 5 and 6 are the injured persons and p.ws. 2 and 3 are the villagers of Bhubanpati. According to p.w. 2, the bullets hit the three persons standing in front of the kitchen hole at a distance of 7 to 8 cubits which would be about 10 to 10? feet, whereas according p.w. 3, the victims were standing at a distance of 3 to 4 cubits in front of the kitchen hole. That brings us to a distance of 4? feet to 6 feet. P.W. 5 Syama Swain, one of the injured persons had stated that he was standing at a distance of 5 to 6 cubit's from the wall where he received the pellets on his chest, hand and face. Thus, according to him, the distance would be between 7? feet to 9 feet. P.W. 6, the other injured had stated the distance to be the same. The Inspector of police (P.W. 17). in his deposition stated that the distance from the hole to the place where the injured persons were hit by the gun shot would be within 10 feet. It may be remembered in this connection that the distance bad not been shown in the sketch map by the Inspector of Police (P.W. 17). In this connection, it may also be remembered that the defence case all along was that if the distance between the kitchen room wherefrom the gun is said to have discharged and the place where in the Danda the deceased and the injured persons were standing and in fact received the gun shot is less than 20 feet, then the theory of firing the gun through the hole becomes improbable. The prosecution evidence had that the gun was shot from a distance of 10 feet and the Inspector was positive in his evidence that the distance would be within 10 feet. The learned Sessions Judge, however, took into consideration the length of the hole and the length of the kitchen house where the Appellant might have been while aiming the gun, and then came to the conclusion that the range was approximately 20 feet. It is on this finding, that the conclusion that the gun was shot through the hole in the kitchen wall is arrived at the learned Sessions Judge it appears has not given due consideration to the opinion of the Ballistic Expert. The Ballistic Expert in his report stated that he had fired test cartridges from the Section B. B. L. gun noted above and sent the empty cases along with his report which is as follows: (a) I have examined the fired cartridge cases marked X and S under the Comparison Microscope and found identical striker and breech face markings on their percussion caps caused by having been struck by he same firing pin in a weapon. I am, therefore, of opinion that the cartridge case marked X has been fired by the same weapon which fired 8, namely. S.B.B.L. gun No. 3627 sent for examination. (b) All the 26 pellets noted in items 5, 6, 7 and 8 are the deformed lead pellets of No. BB shot cartridge. It is not possible to identify the weapon from which these have been fired for it is possible to identify the particular fired cartridge cases in which these had been contained. (c) The fired cartridge case marked X is the fired case of a 12 bore Eley Alphamax cartridge. It is not possible to say what size or shots it had contained. (d) An Eley Alphamax cartridge loaded with No. BB shots contains 86 pellets. (e) Cartridges marked A/1 and A/2 are like 12 bore Eley Alphamax cartridges loaded with No. BB shots. Cartridges marked A/3 to A/7 are live 12 bore Eley cartridges of which A/3 is loaded with LG shots, mark A/4 with BB shots, mark A/5 with No. 4 shots and marks A/6 and A/7 with No. 6 shots. (e) Cartridges marked A/1 and A/2 are like 12 bore Eley Alphamax cartridges loaded with No. BB shots. Cartridges marked A/3 to A/7 are live 12 bore Eley cartridges of which A/3 is loaded with LG shots, mark A/4 with BB shots, mark A/5 with No. 4 shots and marks A/6 and A/7 with No. 6 shots. (f) From the injuries as noted in the post-mortem report on Bhaira Swain and in the injury report of Syama Swain, it appears from the nature and spread of the shots that these persons had been hit by gun fire inflicted from a range of approximately 3(1) feet. The pellets extracted from their injuries of BB size which indicate that they were shot with cartridges loaded with BB shots. (g) The small Jui branch labelled 'B' contains some puncture marks which might have been caused by pellets resulting from gun fire, but it is not possible to say if these had been caused by No. BB shots. It is not possible to say if the marks on the exhibits labelled A, C and D had been caused by pellets. Exts. A, C and D are coconut branch, Barkoli branch and Siju branch respectively. 9. An identical Question came up for consideration before the Supreme Court in the case of Santa Singh v. State of Panjab. In that case, the eye-witnesses deposed to the fact that the gun was fired at & range of 25 feet, whereas the medical opinion was that the shot was fired from a short range of about 9 inches to a yard or a yard and a half. The Ballistic Expert's opinion was that the gun must have been fired within few inches and not more the 9 inches. In view of this evidence of the Ballistic Expert and the medical evidence, their Lordships held that in face of the medical evidence the testimony of the eye-witnesses cannot be safely accepted. Thereafter, their Lordships went to consider the delay which was suspicious. The delay in respect of important steps' in the course of investigation were, held to be suspicious. Accordingly, their Lordships were of opinion that it was unsafe to hold that the prosecution had established their case beyond any reasonable doubt. In the instant case, the medical officer had not been asked to give his opinion as to the distance from which the gun might have been fired. Accordingly, their Lordships were of opinion that it was unsafe to hold that the prosecution had established their case beyond any reasonable doubt. In the instant case, the medical officer had not been asked to give his opinion as to the distance from which the gun might have been fired. The case, however was referred to the Ballistic Expert and he was definite in his opinion that from the injuries as appear from the post-mortem report of the deceased and the certificates of injuries persons and the spread of the shots, there is no doubt that these persons must have been hit by, gun fire inflicted from a range of approximately 30 feet. The defence case also was that the Appellant shot the gun from his bed room inside the Khamar and the distance from there would be about 25 to 30 feet. Thus, the defence version appear to get some support from the report of the Ballistic Expert. Hence, it would be unsafe to hold that the gun was shot as has been tried to be proved in this case by the prosecution from a range of 10 feet. On the other hand from the opinion of the Ballistic Expert it is absolutely clear that the gun was shot from a range of 30 feet which tallies with the defence case.' The conclusion on this point alone entitles the Appellant to an acquittal. But, however, in view of the importance of the case, I would refer to the other points also. As I have stated earlier, the learned Sessions Judge has found that the incident happened at dawn, before the villagers were awake and not at about 2 ghadies of the day as had been tried by the prosecution to be proved at the trial. It has also been sufficiently proved from the evidence of the prosecution itself that Mohanlal went to the Khamar house at Bhubanpati with 10 to 15 persons, some of whom as admitted by the Assistant Sub-Inspector of Police to be Gundas. Ext. B mentioned the names of Shyma Padhan, Hadu Panda and Bona Naik as members of the unlawful assembly formed by Mohanlal. All these persons have been admitted to De Gundas by the Assistant Sub-Inspector of Police (p.w. 14). The physique and the appearance of the deceased are sufficient to prove that he was a Gunda. Ext. B mentioned the names of Shyma Padhan, Hadu Panda and Bona Naik as members of the unlawful assembly formed by Mohanlal. All these persons have been admitted to De Gundas by the Assistant Sub-Inspector of Police (p.w. 14). The physique and the appearance of the deceased are sufficient to prove that he was a Gunda. The learned Government Advocate did not challenge these findings. He also conceded that the real question in this case is as to where did actually the occurrence take place whether inside the courtyard or at the Danda. Even if I believe the Police witnesses that there was a hole in the kitchen wall towards the Danda, that itself is not sufficient to bring one to a conclusion that the gun was shot through the hole in the kitchen wall. 10. From the range of the gun as has been discussed in the foregoing paragraph, the actual place of occurrence appears to be inside the courtyard and not in the Danda, because the distance in between the hole and the place where the deceased and the injured were shot at is only 10 feet, whereas the distance in the courtyard where the dead body was found and the bed room of the Appellant appears to be within the range of the gun. The prosecution case is that after Bhaira Swain fell down he was removed by Fakir "Misra, Udi Barik, Dhoi Padhan and Bihari Khatei, the men of the Appellant Biswanath. Admittedly, the deceased was shot by a gun which had caused gaping injury. But curiously no trail of blood is to be found in between the place where according to the prosecution the deceased and the injured were shot at and the place where actually the Police found the dead body inside-the courtyard. It appears improbable also because according to the Ballistic Expert's opinion it is very difficult to say if the marks found in the branch of the coconut tree, Barkoli tree and the Siju plant had been caused by pellets. All that the Expert aid is that the small Jui branch contained some puncture marks which might have been caused by pellets resulting from gun fire. The Jui plant is situated on the northern fence of the Bari of the Khamar which according to the sketch map (Ext. 23) would be on a side. All that the Expert aid is that the small Jui branch contained some puncture marks which might have been caused by pellets resulting from gun fire. The Jui plant is situated on the northern fence of the Bari of the Khamar which according to the sketch map (Ext. 23) would be on a side. The pellets when they spread from the catridge after fire would go forward and not sidewise. Thu, it is improbable that this Jui plant which was situated on a side would have got these pellet marks. Accordingly, in my opinion, it is consistent with the defence version that the incident did take place inside the courtyard and not at the Danda. 11. Coming now to the eye-witnesses to the occurrence, I may mention again that they are p.ws. 1, 2, 3, 4, 5, 6 and 7. P.W. 1 is Mohanlal himself. P.Ws. 5 and 6 are the other injured persons. P.Ws. 2, 3 and 7 are the villagers of Bhubanpati. Mohanlal was examined by the Police on July 31, 1957 at Puri and p.w. 5 was similarly examined at Puri on August 1, 1957. The other P.Ws. were not examined until August 3, 1957. I had stated earlier that the Assistant Sub-Inspector of Police in this case arrived at the place of occurrence on July 30, 1957 between 9 and 10 in the morning. He started the investigation and did not arrest the Appellant but left for Puri to take instructions from the Inspector of Police. The Inspector of Police at Puri instructed him to return to the spot and carry on the investigation. Accordingly, he returned the same night and arrived next morning at Bhubanpati. Although the eye-witnesses were available to the Assistant Sub-Inspector of Police, he did not record their statements. P.W. 3 had stated that he had made certain statements before the A.S.I. and they were recorded, but those statements are not forthcoming. From the record, it appears that he was reexamined by the Inspector of Police on his arrival on August 3, 1957. P.W. 3 first of all stated that he deposed as instructed by Biswanath and that statement was recorded by the A.S.I. When the Inspector arrived, he assured him that there was no danger from their Mahajan Biswanath and hence he was telling the truth. P.W. 3 first of all stated that he deposed as instructed by Biswanath and that statement was recorded by the A.S.I. When the Inspector arrived, he assured him that there was no danger from their Mahajan Biswanath and hence he was telling the truth. P.W. 4 though admitted before the committing magistrate that certain statements were made before the A. Section I. went back upon it at the trial. He was, however confronted by his statements before the committing court. Apart from the delay the earlier statement recorded by the A.S.I. is not forthcoming in this case and no satisfactory explanation whatsoever has been given by the prosecution. Mr. Kanoongo relied on a case of the Patna High Court in the case of The King Emperor v. Punit Chain and Ors. AIR 1922 Pat. 348. In that case Jwala Prasad and Coutts, JJ held that whatever reasons might be given by the Police to record late the statement of the principal witnesses for the prosecution, the defence is entitled to ask that the evidence of those witnesses should be discarded, inasmuch as, there was sufficient time and opportunity for their being tutored. Not only that there was sufficient time for being tutored in this case, but from the record it appears that some of the material documents which if produced by the prosecution would have disclosed the real state of affairs have not been produced at the trial. For instance, Mohanlal first made statement to the constable in charge at the Brahmagiri Police Station on the date of occurrence immediately after the incident had happened. By that time, the Sub-Inspector in charge of the Police Station had previously gone out and the Assistant Sub-Inspector had started for the place of occurrence. Hence, the statement was made to the constable, who was in charge of the station-diary. Furthermore, Mohanlal also made a statement before the Inspector of Police at Puri. These two earlier statements have not been produced in this case. The prosecution does not give any explanation as to what had happened to these documents. The defence rightly contended that if these documents were produced, it would have disclosed the real state of affairs, that is, Mohanlal went prepared with Gundas, whatever might be the number, to take forcible possession of the paddy in the Khamar which was being managed by the Appellant. The defence rightly contended that if these documents were produced, it would have disclosed the real state of affairs, that is, Mohanlal went prepared with Gundas, whatever might be the number, to take forcible possession of the paddy in the Khamar which was being managed by the Appellant. Again, there was a forwarding note in which the gist of the occurrence was given by Assistant Sub-Inspector of Police while forwarding the Appellant to be produced before the Court. This document is also suppressed and has not been filed at the trial. The Appellant at the time of his arrest complained of a pain in his left ankle which was swollen. The Police sent a requisition to the Brahmagiri medical officer to examine the Appellant. The doctor at Brahmagiri examined him and issued an injury certificate (Ext. C). It may be stated here that the original of that certificate has not been produced at the trial. It was not being produced even till at a late stage of the trial and the prosecution did not examine the medical officer of Brahmagiri. However, at the instance of the Appellant a copy of it was produced and marked as Ext. C. The Appellant examined the medical officer of Brahmagiri dispensary as d.w. 1, who stated that he examined the Appellant and found the swelling. In view of the tenderness he advised that x-ray photo should be taken in order to find out if it was a case of fracture. Curiously, when the Appellant was remanded to the jail custody, the doctor in charge of the jail noted his condition to be good in the jail register, and he was not sent for x-ray examination. Furthermore, from the jail register, it appears that it was not signed by the Civil Surgeon, who is the Superintendent of the jail and there were marks of erasing. The Inspector of the Police first of all denied to ha, e received the injury report while forwarding him to court but when he was confronted with the case diary in the counter case where he mentioned of receiving the injury report he was constrained to admit the fact. The Inspector of the Police first of all denied to ha, e received the injury report while forwarding him to court but when he was confronted with the case diary in the counter case where he mentioned of receiving the injury report he was constrained to admit the fact. Attempt was made to show that a number of Bhois from Toran are said to have arrived at Bhubanpati the previous night to protect the Appellant and not a word had been breathed either by the Chowkidar or the Assistant Sub-Inspector as to what happened to them. All these lead to the suspicion that the prosecution had not tried to put the incident as it actually happened. In view of the late examination of the witnesses to the occurrence, the whole story appears to have been embellished to a considerable extent. 12. In the view that I have taken above, the question of right of private defence does not arise, because the prosecution has not been able to prove the offence against the Appellant beyond all reasonable M.V. Rang Rao v. The director of forests Orissa doubt as has been held by the Supreme Court and which I had referred to in the previous paragraph. The suspicious delay in respect of important steps in the course of investigation is itself a ground to hold that the prosecution has not established the case against the Appellant beyond reasonable doubt. Accordingly, I would set aside the order of conviction and sentence as passed by the learned Sessions Judge, allow this appeal, acquit the Appellant and direct that he be set at liberty forthwith and his bail bond be cancelled. Appeal allowed. Final Result : Allowed