JUDGEMENT P. C. Borooah, J. :- The four appellants before us, who are all officers of the Calcutta Police, were tried in the Court of Sri Raghabendra Banerjee, Judge City Sessions Court, Calcutta in Sessions Trial No. 1 of November 1979 on two counts under S.302 read with S.34 of the Indian Penal Code on the allegation that they had on November 11, 1970 at about 9.50/10.00 p.m. at Shyampukur Street, Calcutta along with Bibhuti Chakraborty, the then Assistant Commissioner of Police (N.S.) and others had caused the deaths of Ranjit Chakraborty and Samir Chakraborty, the sons of Harshanath Chakraborty of 71/4, Shyampukur Street, Calcutta, by gun shot injuries. 2. The learned Judge by a judgment and order dated January 18, 1980 found all the appellants guilty on both the counts and sentenced them to suffer imprisonment for life on each count - the sentences being directed to run concurrently. 3. The prosecution case briefly stated is as follows :- One Harshanath Chakraborty (P.W. 5), a retired A.S.I. of the Calcutta Police, resided in a flat at No. 71/4, Shyampukur Street within police station Shampukur in Calcutta along with his wife and other members of his family. He had seven sons of when P.W. 1 was the eldest. The second son Ranjit, a constable of the Calcutta Police, and the third son Samir, who was a N.V.F. Cadet, were killed as a result of police firing on the date of the incident. 4. The incident occurred on November, 11, 1970 at about 9.50/10.00 p.m. A little while before that P.W. 5 had asked Ranjit and Samir to go and look for Benoy who was late in returning home so that they could all have their night meal together. Ranjit and Samir met Benoy on the road outside their house and whilst they were sitting on a 'roak' and Benoy was talking to P.W. 2 Manick Lal Ghose, three vehicles carrying the accused appellants and about 15/20 policemen came and stopped in front of premises No. 71 Shyampukur Street. The police officers led by Bibhuti Chakraborty, the then D.C. North rushed towards Benoy and his two younger brothers with revolvers in their hands. The police officers led by Bibhuti Chakraborty, the then D.C. North rushed towards Benoy and his two younger brothers with revolvers in their hands. Benoy and his brothers out of fear raised their hands and Ranjit disclosed at once that he was a constable of the Calcutta Police attached to the Port Police and Samir also gave out that he was a N.V.F. man. In spite of this Bibhuti Chakraborty shot Ranjit at point blank range injuring him, and with the bleeding injury Ranjit ran inside premises No. 71 to the flat of one Falguni Babu and took shelter in his bath room. The appellants Chitta Ganguly and Bimal Thakur followed Ranjit and dragged him out on to the street and Bimal Thakur shot at him; other police officers including some of the appellants also fired at Ranjit. In the meantime Samir who had also tried to run inside the house was caught hold of by some police officers and thereafter Shew Mongal Singh and some other accused persons also shot at him causing bullet injuries. Thereafter Samir and Ranjit were dumped into a police jeep and after Benoy and Manick were also forced inside, the convoy of police vehicles came to a place near Rajarghat on the bank of the river Hooghiy; the police party halted there for about an hour. When Samir started crying in agony some police officer, who was inside one of the Ambassador Cars, ordered that his voice should be silenced. Thereupon Anil Maitra who was inside the jeep shot him. Thereafter Ranjit and Samir were taken to the R.G. Kar Hospital where Ranjit was declared dead and Samir also died within a few minutes of his arrival before any medical assistance could be given to him. Benoy and Manick were also taken into custody and were produced before a Magistrate on the following day when they were released on bail. 5. The accused appellants pleaded not guilty to the charges and claimed that they were innocent. Their defence was that on the relevant date a police party had gathered at the office of the D.C. North and being led by him they had gone out for patrol in the Jorabagan and Shyampukur areas which were considered to be troublesome areas due to the Nexal trouble which was prevalent at that time. Their defence was that on the relevant date a police party had gathered at the office of the D.C. North and being led by him they had gone out for patrol in the Jorabagan and Shyampukur areas which were considered to be troublesome areas due to the Nexal trouble which was prevalent at that time. When the police party entered Shyampukur Street they were attacked by miscreants and as a result Shew Mongal Singh was injured and he was immediately removed by P.R. Dey and Chitta Ganguly to the R.G. Kar Hospital. After that D.C. North was compelled to give firing orders and as a result Ranjit and Samir were injured and Benoy and Manick were arrested and taken to Shyampukur P. S. and a case was started against them under Ss.148/307/149 of the I.P.C. and Ss.3 and 5 of the Explosive Substances Act. The two injured were removed to the R.G. Kar Hospital. The further defence of Shew Mongal Singh and Chitta Ganguly was that they had been falsely implicated in the case after attempts to persuade them to depose against Bibhuti Chakraborty had failed. 6. The proceedings were initiated on the basis of a complaint filed on December 22, 1970 by P.W. 1 Benoy Chakraborty in the Court of the Additional Chief Metropolitan Magistrate, Calcutta. Apart from the four appellants, two others were named as accused in the said complaint. They were Bibhuti Chakraborty, the then Deputy Commissioner (North Division) and P.R. Dey, the then Assistant Commissioner (North Suburb). The learned Magistrate on receipt of the report of the judicial enquiry, by an order dated February 27, 1971 issued process against the four appellants under Section 302/34, I.P.C. He however did not issue process against Bibhuti Chakraborty and P.R. Dey for want of sanction under Section 197 of the Cr. P.C. 7. Thereafter P.W. 5 Harsha Nath Chakraborty made two applications on September 9 and December 22, 1971 for grant of sanction to prosecute Bibhuti and P.R. Dey; both these applications were rejected. In Nov. 1973 Benoy filed another application; this was also rejected on Dec. 24, 1973. Thereafter on July 11, 1977 after the change in the Government Benoy filed another application; on Aug. 4, 1997 sanction was given. Against this order Bibhuti moved the High Court on Sept. 1, 1977 under Art.226 of the Constitution and obtained a Rule. In Nov. 1973 Benoy filed another application; this was also rejected on Dec. 24, 1973. Thereafter on July 11, 1977 after the change in the Government Benoy filed another application; on Aug. 4, 1997 sanction was given. Against this order Bibhuti moved the High Court on Sept. 1, 1977 under Art.226 of the Constitution and obtained a Rule. The Rule was however discharged by a single Judge on Dec. 18, 1978. Bibhuti filed an appeal and the appeal Court by a judgement and Order reported in 84 Cal WN 359 allowed the appeal and struck down the order sanctioning the prosecution of Bibhuti on the ground of mala fides on the part of the State Government and the violation of the rules of natural justice. 8. Messrs. Sankar Das Banerji, Nalin Chandra Banerjee, Ashoke Kumar Sen and Dilip Kumar Dutta addressed us in support of the appeal. 9. It was urged on behalf of the appellants that they were members of a police party acting under the orders of the D.C. North. On the night of the incident they had been out on a routine patrol of disturbed areas and when the police party had come to Shyampukur Street it was attacked by miscreants; as a result of the attack Shew Mongal Singh had received an injury and had to be removed to hospital. Thereafter Anil Maitra was also injured. In the circumstances Bibhuti had ordered the firing and some of the members of his force acting under his orders had also fired, as they were bound to do under R. 25 of the Calcutta Police Regulations; the firing order not being manifestly illegal, none of the members of the police party can be deemed to have committed any offence under the Penal Code. 10. The delay in the filing of the petition of complaint by Benoy also came in for severe criticism. It was submitted that P.W. 5 a retired police officer, should know how a complaint in a cognizable case should be lodged and it is unbelievable that he would only make a verbal complaint to the Commissioner of Police on the day following the incident. The defence also wanted this Court to draw an adverse inference against the prosecution for its failure to prove the later complaints said to have been made in writing to the Governor and Police Commissioner. The defence also wanted this Court to draw an adverse inference against the prosecution for its failure to prove the later complaints said to have been made in writing to the Governor and Police Commissioner. According to the defence the belated petition of complaint gives a bolstered up and untrue version of the incident and as such we should reject the prosecution case in toto. 11. Extensive arguments have been made on behalf of the appellants on the evidence adduced by the prosecution. It was argued that as the alleged eye witnesses give different versions of the incident and as to the parts alleged to have been played by the appellants, we should set aside the order of conviction. 12. As regards recognition of the appellants at the time of the incident, it was submitted that the occurrence took place in a November night when it was cloudy and drizzling. Apart from P.W. 5, who being a retired police officer may have known some of the appellants, there was no occasion for the other alleged eye witnesses to know and identify the appellants by name and by face almost nine years after the incident. 13. Mr. S.K. Acharyya, the Advocate General West Bengal appeared before us on behalf of the State. He has contended that the appellants are not entitled to any protection even if they had acted under the orders of their superior officer, as the firing on two unarmed men who were sitting on the 'roak' of their house is manifestly illegal. Our attention was drawn to certain passages from Smith and Hogan's and Glanville William's publications on Criminal Law where the authors have dealt with the question as to when the defence of acting under superior orders can be taken; we shall refer to them later in the judgement. 14. The learned Advocate General asked us to bear in mind that this is not a normal case of murder, but a case where the protectors of law and order have become the predators. Under the circumstances it was urged that there are bound to be some lacunae in the prosecution case as the proceedings were initiated on a private complaint, and we should not expect or insist upon the rigid standard of proof as in any normal criminal case. Under the circumstances it was urged that there are bound to be some lacunae in the prosecution case as the proceedings were initiated on a private complaint, and we should not expect or insist upon the rigid standard of proof as in any normal criminal case. About the discrepancies in the evidence pointed out on behalf of the defence the learned Advocate General's contention is that as the witnesses were deposing about 9 years after the incident discrepancies are natural and expected. It was also submitted that we should not reject trustworthy evidence on fanciful grounds; in this context reference was made to a decision of the Supreme Court in the case of "State of Punjab v. Jagir Singh Baljit Singh" reported in AIR 1973 SC 2407 : (1973 Cri LJ 1589). As to the standard of proof required in criminal trials, reference was made to a decision of the House of Lords reported in (1966) 1 All ER 524 which approved of the view taken by Lord Denning in "Bater v. Bater" - (1950) 2 All ER 458. It was also submitted by the learned Advocate General that it may not be possible to apportion the guilt to each individual accused, but because of the addition of Section 34 to the charges under Section 302 of the I.P.C., their mere presence at the spot if proved would establish their involvement in the offences with which they have been charged. 15. The defence of acting under superior orders has an important bearing on the morale and discipline of the police force, which undoubtedly plays a vital role in the maintenance of law and order in any State. Like the armed forces the police force is a disciplined force; if the discipline goes, the force disintegrates. Acting in strict accordance with the order of a superior is a part of discipline. If an order to fire is given and there are casualties, can the policeman who opened fire be prosecuted for a criminal offence ? If the order is not necessarily and on the face of it illegal, such as, an order to shoot an innocent passerby or to torture a person, the policeman carrying out the order is certainly entitled to protection under the law. Political considerations should have no bearing whatsoever. 16. If the order is not necessarily and on the face of it illegal, such as, an order to shoot an innocent passerby or to torture a person, the policeman carrying out the order is certainly entitled to protection under the law. Political considerations should have no bearing whatsoever. 16. There is however a paucity of decisions on this point and it will be useful to refer to some foreign authors. In the 8th Edition of Cross and Jones "Introduction to Criminal Law", the learned authors at page 371 make the following comments :- "There is no clear English decision on the extent to which it is a defence for a person to show that he did the act with which he is charged under orders from his official superior. It is impossible to say much more on this matter than Willes, J. did in the course of the argument in Keighley v. Bell. "The better opinion is that an officer or soldier acting under the orders of his superior not being necessarily or manifestly illegal would be justified by his orders". This view has been adopted in South Africa, although a stricter opinion appears to prevail in the United States of America. According to that opinion, it is not enough that the soldier should believe the order to be lawful, it must be lawful in fact". 17. In Glanville William's "Textbook of Criminal Law", 1978 Edition at p. 408, the following passage appears :- "The authorities are sparse and in conflict. In the old case of Thomas a naval sentinel who, being ordered to keep, off all boats, fired at a boat and killed a man in it, was convicted of murder, notwithstanding that the jury found that he fired under a mistaken impression that it was his duty. A contrary view was taken by the Supreme Court of the Cape of Good Hope in Smith, which is widely approved by commentators. The facts were that, during the South African War, a soldier was ordered by his officer to shoot a Boer civilian if he did not fetch a bridle, and obeyed the command by killing the Boer. He was acquitted of murder although the command was unlawful. The facts were that, during the South African War, a soldier was ordered by his officer to shoot a Boer civilian if he did not fetch a bridle, and obeyed the command by killing the Boer. He was acquitted of murder although the command was unlawful. Soleman J. said : If a soldier honestly believes he is doing his duty in obeying the commands of his superior, and if the orders are not manifestly illegal that he must or ought to have known that they are unlawful, the private soldier would be protected by the orders of his superior officer." 18. As regards defence of superior orders, at page 209 of Smith and Hogan's Criminal Law. 1978 Edition. these are the observations :- "Though there is little authority on this question, it is safe to assert that it is not a defence for D merely to show that the act was done by him in obedience to the orders of a superior, whether military or civil. Where a security officer caused an obstruction of the highway by checking all the vehicles entering his employer's premises, it was no defence that he was obeying his employer's instructions. The fact that D was acting under orders may, nevertheless. be very relevant. It may negative mens rea by, for example, showing that D was acting under a mistake of fact or that he had a claim of right to do as he did, where that is a defence; or, where the charge is one of negligence, it may show that he was acting reasonably. 19. The only question (which has been discussed mainly in connection with military orders) is whether orders are a defence where they do not negative mens rea or negligence, but give rise to a reasonable mistake of law. The Manual of Military Law now asserts as "the better view" that they do not. Dicta in some of the cases suggest that they might. The Manual of Military Law now asserts as "the better view" that they do not. Dicta in some of the cases suggest that they might. In a South African case which has been much cited, Solomon J. said : "I think it is a safe rule to lay down that if a soldier honestly believes he is doing his duty in obeying the commands of his superior, and if the orders are not so manifestly illegal that he must or ought to have known they are unlawful, the private soldier would be protected by the orders of his superior officer..........." "The only English authority directly on the point holds that it is not a defence to a charge of murder for D to show that he fired under the mistaken impression that it was his duty to do so. D was, no doubt, making a mistake of law, but there is no finding as to its reasonableness. If mistake of law does not afford a defence where it is reasonable on other grounds, it should not, in principle, afford a defence because it is reasonable as arising from the orders of a superior. If the result is harsh, it is because the rule (if it be the rule) that reasonable mistake of law is not a defence is a harsh general rule." 20. As regards the Australian law on this aspect there is a text book by Colin Howard on Criminal Law and in p.424 of the third Edition under the caption "Superior Orders" the following comments appear :- "The rule is stated in the Queensland and Western Australian Codes, S.31(2), that a "person is not criminally responsible for an act or omission, if he does or omits to do the act...... (in) obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful". It is added that whether an order is manifestly unlawful is a question of law. To this the gloss must also no doubt be added that the Section does not exculpate D if he obeys an order which he knows to be unlawful merely because it is not manifestly so. The assumption must be made that D either does not know of the unlawfulness of the order or does know but obeys nevertheless. To this the gloss must also no doubt be added that the Section does not exculpate D if he obeys an order which he knows to be unlawful merely because it is not manifestly so. The assumption must be made that D either does not know of the unlawfulness of the order or does know but obeys nevertheless. If this is correct the effect is that S.31(2) lays down a rule that D is excused for obeying an order which he reasonably believes to be lawful, the test of reasonableness being the comparatively lenient criterion that the order must not be manifestly unlawful; and this may be the law in Australia generally. The problem of superior orders usually presents itself in a military context in time of war. In common with treason, although traditionally regarded as part of the general body of the criminal law it has affiliations with politics and international law which have little to do with domestic criminal law as an everyday instrument of social regulation. Its importance in domestic criminal law is therefore not great. Theoretically it has significance for the police but in practice policemen are almost never prosecuted." 21. As far as the Calcutta Police is concerned there is a specific provision which requires obedience to an order passed by a superior officer. This requirement will be found in Rule 25 of Chapter IV Part II of the Police Regulations, Calcutta, 1968, Vol. I. The rule reads thus :- "Every police officer shall be subordinate to and shall be bound to carry out any order given by, any police officer superior to him in rank." 22. On this aspect S.76 of the I.P.C. and the first illustration appended thereto are also material. The Section and the illustration are as follows :- "S.76. Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law, to do it." Illustration "(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence." 23. In the instant case it is not disputed that the appellants were members of a police party acting under the orders of the Deputy Commissioner (North). A has committed no offence." 23. In the instant case it is not disputed that the appellants were members of a police party acting under the orders of the Deputy Commissioner (North). The trial Court has also in the judgment observed :- "There is no doubt about the sanity of the accused persons at the time of committing the offence. In spite of all these, however, since there is evidence that the principal part in committing the murders had been taken by the D.C. (North) Bibhuti Chakraborty and the A.C. (N. S.) P.R. Dey under whose leadership the accused persons had worked." 24. The question which therefore arises for consideration is, if the appellants actually fired in obedience to Bibhuti Chakraborty's orders resulting in the deaths of Ranjit and Samir, have they committed the offence of murder ? In this context it must be borne in mind that in the years 1970-71 certain parts of this State, including the City of Calcutta, were passing through some amount of turbulence due to what is known as the "Naxal Movement". It is common knowledge that during that period a sitting Judge of this Court and a member of the Higher Judicial Service were killed; so also were political leaders, businessmen and members of the police force. These killings also in some cases led to the inevitable retaliation. On this point there is also some evidence on record. P.W. 1, Benoy Chakraborty in his evidence has stated :- "I did state in the Commitment Court that newspapers reported that during August, 1970 to April 1971, there had been seven or eight murders. No such murder took place in our area except the murder of my two brothers. These murders included various people including High Court Judge and students. I did hear of the murder of' Hemanta Bose. I heard that, that occurred on the Shyampukur Street, which however, is a long street. Hemanta Bose was murdered at the junction of Shyampukur Street and Cornwalis Street." P.W. 2 Manicklal Ghose has deposed to the following effect :- "I know the area covered by the Shyampukur Thana and I know that within that area there had been cases of murders during, 1970-71. I have heard and read in the newspapers that the late Hemanta Bose as well as some men of the police were amongst those persons who had been murdered. I have heard and read in the newspapers that the late Hemanta Bose as well as some men of the police were amongst those persons who had been murdered. We did hear sounds of bursting of bombs etc. within the Shyampukur Thana area and read about them in the newspapers but I can say that at or near about the place of occurrence there had been no such occurrence of bursting of bombs etc. at relevant time." 25. In the backdrop of such a situation the culpability of the appellants in the purported police acting on the night of the incident has to be judged. 26. According to the prosecution the police party led by the Deputy Commissioner (North) came in three vehicles and fired on Ranjit and Samir, who were sitting on the 'roak' of their house. It is, also the prosecution case that neither Ranjit nor Samir nor anyone else present with them was armed, but the police fired on the two innocent persons causing their death. If this be true the order passed by Bibhuti Chakraborty to open fire on Ranjit and Samir is manifestly illegal. We have, how ever, to see as to what was really the state of affairs prevalent at the time when the police action took place. 27. According to the defence, very soon after the police party led by the Deputy Commissioner (North) arrived at the spot Shew Mongal Singh received injuries on the dorsum of his left hand and he had to be removed to the R. G. Kar Hospital by P.R. Dey and Chitta Ganguly. The contemporaneous hospital records bear out this part of the defence case. P.W. 6 Dr. Mahaprosad Kundu examined Shew Mnngal Singh at the R.G. Kar Hospital at 10.05 P.M. on November 11, 1970 and found on examination two lacerated injuries on the dorsum of his left hand 1" X ½" X ¼" and the other 1½" X ¼" X either ½" or ¼". P.W. 6 has also stated in his evidence that the patient himself did not give any history of his injuries but one P.R. Dey who had accompanied him made some statements. 28. Ext. 4/2 is the injury report of Shew Mongal Singh which has been proved by the prosecution through P.W. 6. P.W. 6 has also stated in his evidence that the patient himself did not give any history of his injuries but one P.R. Dey who had accompanied him made some statements. 28. Ext. 4/2 is the injury report of Shew Mongal Singh which has been proved by the prosecution through P.W. 6. On a reference thereto it appears that the place of occurrence has been given as Shyampukur Street and the cause of injury : "As the party (Sri P.R. Dey) states that he (the patient) received the injuries during an encounter." 29. The defence has exhibited a G.D. entry of the Chitpur Police Station recorded by the appellant Chitta Ganguly. This is Ext. D/1 and was recorded at 12.40 A.M. The entry reads thus :- "1066 - 12.40 A.M. Returned to P.S. with Sgt. 12.40 B. Thakur Const. N-39 and N-84 after assisting D.C.N. and A.C.N.S. with other officers of other P.Ss., in raids. Const. M-84 Dinanath Missir fired 4 rounds from his revolver on Shyampukur St. u/o of D.C.N. The details of the incident have been registered at Sec. A. I also assisted A.C.N.S. in removing O/C B to R.G. Kar Hospital with injury from Sec. 'A' Area." 30. The learned Advocate General tried to argue that the person who had been attended to, by P.W. 6 Dr. Mahaprosad Kundu at the R.G. Kar Hospital on the night of the incident at 10.05 P.M, could not have been Shew Mongal Singh, but someone else might have gone there posing as Shew Mongal Singh. It is difficult for us to accept this submission. How could Shew Mongal Singh or the other persons present with the police party on that night apprehend that they would have to face a trial on a murder charge on a future date and they should concoct some entries both in the hospital and in the police station ? We have no doubt whatsoever about the genuineness of Ext. 4/2 and we have also no manner of doubt that P.W. 9 in fact examined Shew Mongal Singh and found injuries on the dorsum of his hand. 31. There is also evidence of P.W. 6 that on that very night at 11.25 P.M. he examined S.I. Anil Maitra of Burtolla Police Station, who is an appellant before us. 4/2 and we have also no manner of doubt that P.W. 9 in fact examined Shew Mongal Singh and found injuries on the dorsum of his hand. 31. There is also evidence of P.W. 6 that on that very night at 11.25 P.M. he examined S.I. Anil Maitra of Burtolla Police Station, who is an appellant before us. On Anil Maitra he found only one injury, namely an abrasion ½" X ¼" over the right outer canthus. The relevant injury report relating to Anil Maitra is Ext. 4/3 which has also been proved by the prosecution. According to Ext. 4/3 the place of occurrence is Shyampukur Street and the cause of injury : "As stated by the pt. during an encounter he got the following injury." 32. It thus appears that the incident at Shyampukur Street on the night in question did not occur in the manner as sought to be brought out by the prosecution through its witnesses. The police party headed by the Deputy Commissioner (North) had gone on patrol and when they came to Shympukur Street some incident had occurred in the course of which Shew Mongal Singh received injuries. The situation prevailing at that place must have been such that the superior officer in charge of the force considered it necessary to give an order to fire.After such an order had been given were the members of the force expected to hold a discussion amongst themselves as to whether the order was legal and whether they should carry it out ? Or is it expected that they would obey it promptly, as was their duty, if the order was not on the face of it illegal ? It must also be remembered that Shyampukur was a troublesome area and, as stated earlier, in the year 1970-71 a number of policemen had been attacked. In such circumstances we have no other option but to hold that the order passed by Bibhuti Chakraborty cannot be deemed to be necessarily and manifestly illegal, and the police officers acting under him were bound by R. 25 of the Police Regulations, Calcutta to carry out the order. As such, if the appellants actually fired leading to the unfortunate deaths of Ranjit and Samir, they are fully protected by the superior order passed by Bibhuti Chakraborty and they cannot be deemed to have committed any offence. As such, if the appellants actually fired leading to the unfortunate deaths of Ranjit and Samir, they are fully protected by the superior order passed by Bibhuti Chakraborty and they cannot be deemed to have committed any offence. On this ground alone the appellants are entitled to succeed. 33. Assuming that the appellants are not entitled to take the defence of acting under the order of their superior, let us examine whether the evidence on record has established beyond all reasonable doubt that they were actually responsible for the deaths of Ranjit and Samir. In this context the question whether it was possible to identify the police officers who actually fired, becomes very important. P.W. 5 Harshanath Chakraborty, the father of the two victims, was a retired Asstt. Sub-Inspector of Police. As such it is possible that he may have known some of the police officers in the police party. P.W. 1 Benoy and P.W. 2 Manick in their evidence claim to have known all the appellants by face and by name from before. They do not say as to how, when they were not in any way connected with the police force, they came to know these appellants. Of course, P.W. 9 Shibnath has in his evidence stated that he used to know Bimal Thakur from before as he used to reside in Teliapara Lane which is near P.W. 9's residence, there is no likely reason for him to know, the other police officers whom he has identified. So also is the case with P.W. 8 Jahar. 34. In his evidence P.W. 1 has stated about the day of the incident, "It was partly cloudy. I cannot say whether it was a cloudy day throughout. I did state in the Commitment Court that it was cloudy althrough though it did not rain", P.W. 9 Shibnath has stated "There was a little drizzling that night after the occurrence at the time when I returned home. I cannot say whether it was a cloudy day throughout. I did state in the Commitment Court that it was cloudy althrough though it did not rain", P.W. 9 Shibnath has stated "There was a little drizzling that night after the occurrence at the time when I returned home. I did state in the committing court that there was some drizzling." As such we can proceed on the basis that on the November night when the incident occurred it was cloudy with some drizzling, P.W. 13 Subarna Banerjee, whose evidence before the Committing Court was put in under S.33 of the Indian Evidence Act, stated : "I found 3/4 police vans and a few policemen as well as few persons in plain dress with iron helmet on their heads". Chitta Ganguly has also in his examination under S.313 of Cr. P.C. stated "We all had helmets on our heads and were carrying arms". Therefore the question arises that if on a cloudy and drizzling November night a police party, with helmets on their heads and carrying firearms, is involved in a firing, is it possible for a bystander to state positively as to who fired and to recognize such person ? If the firing had taken place in the manner as alleged by the prosecution it is accepted and it is normal human behaviour that those present would not stand to watch but would try to save their own lives. Undoubtedly the best evidence, which would have clinched the issue, would have been the Arms and Ammunition Registers maintained by the police stations showing the issue of the firearms and ammunition to the police party. A suggestion had been given to P.W. 1 by the defence on this aspect and in answer thereto. P.W. 1 had stated "Bimal Thakur himself knows and recorded what ammunitions he had taken out and what he had re-deposited on his return to the thana, but it is not a fact that because I know that he re-deposited the entire stock taken out by him, I have not called for the register of Firearms and Ammunitions". 35. It also appears from the G. D. Entry Ext. D/1, that constable N-84 had fired 4 rounds from his revolver on Shyampukur Street. 35. It also appears from the G. D. Entry Ext. D/1, that constable N-84 had fired 4 rounds from his revolver on Shyampukur Street. It is thus clear that at least one constable, who is not an accused in this case, used ammunition on Shyampukur Street on the night in question. We are not prepared to accept the argument of the learned Advocate General that the accused persons might have taken weapons from other police personnel and used those weapons for firing. This is nobody's case. 36. It has also been argued before us that the prosecution case was launched at the instance of a private complainant, namely, Benoy Chakraborty, who was helpless against the gamut of the entire police force. We are not prepared to accept that Benoy Chakraborty was such a helpless person because in spite of the fact that the prayer for sanction for prosecution of Bibhuti Chakraborty and P.R. Dey was turned down by the previous Government on three occasions, he still managed to obtain the sanction for prosecuting these two officers. If he could manage to obtain sanction for prosecution he could easily have obtained the Arms and Ammunitions registers relating to the issue of firearms to the four appellants before us. In view of the aforesaid discussion we must hold that if the prosecution had produced the relevant Arms and Ammunition Register, it would not have helped the prosecution case. 37. In this context another question arises for consideration. If we are not satisfied that the witnesses were correctly able to identify the persons who actually fired, can we find the appellants guilty if it is established that they were present at the spot, as was sought to be argued by the learned Advocate General ? In our view mere presence at the place of occurrence without active participation or the doing of some positive act, which would indicate the sharing of the common intention, would not make a person liable for the commission of an offence even with the aid of S.34 of the I.P.C. 38. In our view mere presence at the place of occurrence without active participation or the doing of some positive act, which would indicate the sharing of the common intention, would not make a person liable for the commission of an offence even with the aid of S.34 of the I.P.C. 38. The Supreme Court in the case of Ram Nath Madhoprasad v. State of Madhya Pradesh reported in AIR 1953 SC 420 : (1953 Cri LJ 1772) has observed :- "Even if it is held proved that all the appellants were seen at that spot at the time of firing, this fact by itself could not be held enough to prove a common intention of the appellants to murder Sunder. It can well be that these four persons were standing together and one of them suddenly seeing Sunder fired at him. This possibility has not been eliminated by any evidence on the record. In such a situation when it would not be known who fired the fatal shot none of such persons could be convicted of murder under S.302, I.P.C." 39. In the case of Shreekantiah Ramayya Munipalli v. State of Bombay, reported in AIR 1955 SC 287 : (1955 Cri LJ 857) the following observations appear :- "It is true there must be some sort of preliminary planning which may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act." 40. Therefore, even if the evidence on record establishes that the appellants or some of them may have been present at Shyampukur Street at the time the firing took place, unless it is proved that they or any of them actually fired or assisted Bibhuti Chakraborty in some manner at the time of firing, they cannot be found guilty of the charges framed against them. 41. As regards pre-concert the trial Judge was of the view that the firing took place pursuant to a pre-arranged plan. 41. As regards pre-concert the trial Judge was of the view that the firing took place pursuant to a pre-arranged plan. He has held :- "The fact that the police party did not include any officer of the Shyampukur Thana, they did not halt either at the junction of Ananda Lane or Teliapara Lane where the miscreants were recorded in some G.Ds. to have allegedly suddenly attacked the party (vide G.D. 1167 of Jorabagan and G.D. entry of Shyampukur) but went straight to 71, Shyampukur Street about 60 yards away, if not more, and halted there, all indicated a pre-concerted or pre-arranged plan of action from the very beginning." 42. In our view, the learned Judge was not justified in coming to this conclusion. According to the evidence of Harsha Nath Chakraborty, he had sent Samir and Ranjit to look for their elder brother, so that they could have their meal together, and when they were waiting on the roak the police party arrived. It could not have been possible for Bibhuti Chakraborty or his force to know that Ranjit and Samir would be outside their house at that time of the night, and they could not have possibly gone to the spot pursuant to a pre-arranged plan to shoot both of them. 43. It was submitted on behalf of the appellants that the discrepancies between the evidence of the alleged eye witnesses and the improbabilities appearing there from are such that we should discard the prosecution version of the incident altogether. The learned Advocate General on the other hand argued that we should not insist on a high standard of proof in judging the case and we should not reject the testimony of a witness merely because of some contradictions in the evidence. He has referred to the decision of the House of Lords in Blyth v. Blyth reported in (1966) 1 All ER 524 where Lord Pearce agreeing with the judgement of Denning L.J., in Bater v. Bater, (1950) 2 All ER 458 approved in Hornal v. Newberger Products Ltd., (1956) 3 All ER 390 observed :- "The difference of opinion which has been evoked about the standard of proof in recent cases may well turn out to be more a matter of words than anything else. It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. As BEST, C.J., and many other great Judges have said, "in proportion as the crime. is enormous, so ought the proof to be clear". So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil Court. when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion." "Too close a judicial self analysis is not helpful in deciding the issue. When a Judge begins to doubt whether or not he has reasonable doubts it obscures rather than clarifies his difficult task." 44. Reference was also made to the case of State of Punjab v. Jagir Singh Baljit Singh reported in AIR 1973 SC 2407 : (1973 Cri LJ 1589) where it was held :- "A criminal trial is not like a faily tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures". 45. Keeping the aforesaid observations in mind let us now test the evidence adduced by the prosecution. 46. That both Ranjit and Samir died as a result of police firing there cannot be any doubt. P.W. 5 found Samir's body lying in the R.G. Kar Hospital O.T. and Ranjit's body in the morgue. P.W. 6 examined two unknown patients in the Emergency ward of the R.G. Kar Medical College Hospital. They were brought by S.I. Anil Maitra. The one P.W. 6 examined at 11.22 p.m. was gasping and on him he found one penetrating injury over the pericardium with the wound of exit on the back and one perforating injury over the sternum. He sent this patient to the Operation Theatre. This must have been Samir because P.W. 5 found Samir's body in the O.T. The other patient which P.W. 6 examined at 11.20 p.m. and found dead must therefore have been Ranjit. On Ranjit's body P.W. 6 found four injuries three of which were circular perforating injuries, one on the chest and two on the abdomen and another injury on the back of the loin. 47. The post-mortem examination on the body of Ranjit was performed by P.W. 7 Dr. C.C. Mallick. He found three gun shot injuries all wounds of entrance one on the chest and two on the abdomen. P.W. 10 Dr. S.K. Ghosh performed the post-mortem on Samir. He found in all four gun shot wounds of entrance. The first on the chest; the second on the right side of the anterior chest wall with the wound of exit an the posterior chest wall; the third on the right side of abdomen; the fourth on the right thigh with a corresponding wound of exit on the thigh. 48. He found in all four gun shot wounds of entrance. The first on the chest; the second on the right side of the anterior chest wall with the wound of exit an the posterior chest wall; the third on the right side of abdomen; the fourth on the right thigh with a corresponding wound of exit on the thigh. 48. It thus appears that the number of injuries found an the two bodies by P.W. 6 did not tally with those found by P.Ws. 7 and 10. Constable D.N. Banik (P.W. 12) took the two bodies from the hospital morgue on 13-11-70 and identified them to the post-mortem doctor. According to P.W. 12 the bodies were identified to him by the hospital people, but the hospital records show that the bodies were of 'unknown' persons. It is also the evidence of P.W. 12 that on the same day he took a number of bodies from R.G. Kar Hospital to the morgue. Therefore on whose badies P.Ws. 7 and 10 actually performed the post-mortems will have to remain in the realm of doubt, a doubt which the prosecution only could have cleared up. 49. The prosecution examined P.Ws. 1, 2, 5, 8 and 9 as eye witnesses to the actual occurrence. 50. P.W. 1 Benoy has in his evidence stated that on the night of the incident at about 9.45 p.m. when he reached near his residence, he found Ranjit and Samir waiting for him on the roak in front of their house. At about 9.50 p.m. after Manick came out of his house he noticed two Ambassador Cars and one jeep coming from the directions of Cornwalis Street and halting in front of their house. From those cars 6/7 police officers including Bibhuti Chakraborty, P.R. Day and the four appellants stepped down with open revolvers in their hands. He used to know these officers from before. Apart from these officers 20/25 others also came out of the cars. The 6/7 police officers advanced towards his two brothers with revolvers pointing towards them. As commanded they all raised their hands, including Ranjit and Samir; Ranjit shouted "Ami police loke amake guli karbenna same-side korbenna". Similarly Samir shouted "Ami N.V.F. er cadet etc". In spite of these shouts by Ranjit and Samir Bibhuti fired a shot from his revolver at Ranjit from a distance of ½ cubits when Ranjit shouted "same-side korbenna". As commanded they all raised their hands, including Ranjit and Samir; Ranjit shouted "Ami police loke amake guli karbenna same-side korbenna". Similarly Samir shouted "Ami N.V.F. er cadet etc". In spite of these shouts by Ranjit and Samir Bibhuti fired a shot from his revolver at Ranjit from a distance of ½ cubits when Ranjit shouted "same-side korbenna". After this Samir started shouting for help calling out to their father, and similarly Manick was calling for help from the neighbours. Samir tried to run inside the house when Shew Mongal Singh, Anil Maitra and P.R. Dey ran after him and caught hold of him and dragged him out on the road and fired shots at him : all three of them fired shots. Ranjit also ran to the first floor of the premises followed by Chitta Ganguly; who dragged him out on the road by his hair. He was accompanied by Bimal Thakur who then fired a shot at Ranjit's abdomen on the street. On being fired at by Bimal Thakur Ranjit dropped down on the road and had to be lifted inside the jeep. Samir was still on his legs and he was dumped into the jeep. Benoy was also forced inside the same jeep by the policemen along with Manick. Anil Maitra also boarded the jeep and the other accused persons boarded the other cars. Then they came to a place near Rajar Ghat in a round about way. Whilst the jeep was standing near Rajar Ghat Samir cried out in a loud voice asking to be taken to the hospital when someone from the Ambassador car in front of the jeep asked that his voice should be silenced when Anil Maitra fired a shot at Samir's chest inside the jeep. 51. After waiting at Rajar Ghat for an hour or so, the vehicles were slowly driven to R.G. Kar Hospital when he and Manick were taken out from the jeep and shifted to an Ambassador Car and driven to the Shyampukur Police Station where they were put inside the lock up. 52. P.W. 2 Manick has in his evidence stated that on the night of the incident when he was chatting with Benoy he found two Ambassador cars and one jeep coming from Cornwalis Street and halting in front of their house at 71 Shyampukur Street. 52. P.W. 2 Manick has in his evidence stated that on the night of the incident when he was chatting with Benoy he found two Ambassador cars and one jeep coming from Cornwalis Street and halting in front of their house at 71 Shyampukur Street. Immediately thereafter Bibhuti Chakraborty along with 6/7 police officers stepped down from the first car with open revolvers in their hands. They advanced towards Ranjit and Samir, who were seated on the 'roak' of their house. Both Ranjit and Samir raised their hands and said "same side korbanna amra policer loke samne thana sekhane niey chalun". Then Bimal Thakur pointed at Ranjit and identified him to Bibhuti Chakraborty as Ranjit and said "Ahi C. P. Mer dalal". On being identified by Bimal Thakur whom he used to know from before, Bibhuti shot at Ranjit at' once. After being shot Ranjit went towards Falguni Babu's residence on the first floor of premises No. 71. At that time Samir also tried to go to his own residence to save his life, but he could not escape as Shew Mongal Singh caught and dragged him by his hair and brought him in front of P.W. 2's shop on the road. Chitta Ganguli had accompanied Shew Mongal Singh when he caught and dragged Samir. After Samir was brought on the road in front of the shop, Chitta Ganguly shot at him and Samir fell near a rain water pipe. He also noticed Chitta Ganguli dragging Ranjit out from Falguni Babu's residence by his hair; he was accompanied by Bimal Thakur and they threw him on the road and then and there Bimal Thakur shot at him. Manick was then given lathi blows and forced into the jeep. Ranjit and Samir were also put inside the jeep and Benoy was also forced inside. Anil Maitra and 7 other policemen also boarded the jeep. Then they were taken to the Jorabagan Thana where Shew Mongal Singh was dropped and thereafter the vehicles came to a place known as Kumartuli Rajar Ghat by the side of the Ganges where the vehicles halted for an hour. Whilst they were waiting at Rajar Ghat Samir was crying to be taken to hospital when somebody from the car ahead ordered Samir's mouth to be gagged when Anil Maitra fired a shot at Samir inside the jeep. Whilst they were waiting at Rajar Ghat Samir was crying to be taken to hospital when somebody from the car ahead ordered Samir's mouth to be gagged when Anil Maitra fired a shot at Samir inside the jeep. Thereafter the Convoy came to R.G. Kar hospital where he and Benoy were shifted to an Ambassador Car and brought to Shyampukur Thana and put in the lock up. On the next day they were produced before the learned A.C.P.M. and released on bail. 53. P.W. 5 Harsha Nath Chakraborty has in his evidence stated that about 9 p.m. on 11-11-70 he sent his sons Ranjit and Samir to go and find out why Benoy was late in returning home as they were in the habit of taking their night meal together. After a few minutes he heard Samir's voice crying out to him for help. He immediately ran down-stairs and came to Shyampukur Street and found Chitta Ganguli dragging Samir by his hair and Bimal Thakur firing a shot at him. He also noticed Samir standing with his hands above his head when Shew Mongal shot at him. He tried to run forward to save his sons but he was prevented from doing so by two blows of a baton delivered on the back of his neck by some policemen as a result of which he fell down. He stood up within a minute and noticed Bibhuti Chakraborty, P.R. Dey, Anil Maitra, Shew Mongal Singh and others had surrounded both Ranjit and Samir and were shooting at them. So far as he could recall he heard the sound of firing of 10/12 rounds. He also noticed some policemen lifting Samir who was lying on the street, and dumping him inside the jeep. Another group of policemen dragged the semi-reclining Samir and also dumped him inside the jeep, which was also boarded by Anil Maitra. After the departure of the police vehicles he proceeded to Shyampukur Thana to find out about his sons. 54. P.W. 9 Jahar Ghosh, the brother of P.W. 2, has deposed that on 11-11-70 at about 9-30/10 p.m. he heard the sound of firing of several gun shots as well as shouts and cries. After the departure of the police vehicles he proceeded to Shyampukur Thana to find out about his sons. 54. P.W. 9 Jahar Ghosh, the brother of P.W. 2, has deposed that on 11-11-70 at about 9-30/10 p.m. he heard the sound of firing of several gun shots as well as shouts and cries. On hearing these he came out of his room and stood in front of the staircase when he noticed Ranjit standing on the first floor landing of the staircase leading to Falguni Babu's flat with his hands on his abdomen and groaning. He noticed marks of blood on his clothes. At that time he heard his brother's voice shouting at the top of his voice calling the neighbours for help. On hearing his brother's shouts he ran to Shyampukur Street and on reaching there found several policemen moving about with revolvers in their hands. He also noticed Chitta Ganguly dragging Ranjit by his hair and throwing him on the street and Bimal Thakur firing a revolver shot at Samir. He also saw Ranjit being lifted and dumped into the jeep. He also saw his brother Manick and Benoy being dragged into the same vehicle and Thereafter all the three vehicles being driven away towards the west. 55. P.W. 9 Shib Nath Dutta has in his evidence stated that on 11-11-70 when he came out of his residence. in Telipara Lane to purchase a pan from a pan-shop situated on Shyampukur Street and the time was about 9/9-30 p.m., he noticed two Ambassador Cars and one Jonga jeep coming and stopping in front of 71, Shyampukur Street. At that time Ranjit and Samir were sitting on the 'roak' in front of premises No. 71 and Benoy and Manick were standing near them chatting. Bibhuti Chakraborty with a revolver in his hand and 15/16 policemen came out of the cars. Bibhuti advanced towards Ranjit and Samir when they stood up raising their hands above their heads. Bibhuti fired at Ranjit from a very close range. On being shot Ranjit ran to premises No. 71 followed by a few policemen. In the meantime Samir ran to the lane leading to their residence when some policemen caught and brought him to Shyampukur Street holding him by his hair when Bimal Thakur fired a shot from his revolver at Samir. On being shot Ranjit ran to premises No. 71 followed by a few policemen. In the meantime Samir ran to the lane leading to their residence when some policemen caught and brought him to Shyampukur Street holding him by his hair when Bimal Thakur fired a shot from his revolver at Samir. He used to know Bimal Thakur from before as he used to reside formerly at Telipara Lane. On being shot Samir fell down on the street near a rain water pipe. He has also stated that Shew Mongal had dragged Samir by his hair. After Bimal Thakur had fired the shot he entered inside premises No. 71 and within a minute or two thereafter he saw Chitta Ganguly dragging out Ranjit by his hair. He was accompanied by Bimal Thakur. Ranjit and Samir were lifted into the Jonga jeep; Benoy and Manick were also taken in the same jeep and the policemen then boarded the vehicles which were driven away towards the west. 56. Although Benoy lodged the complaint (Ext. 2) more than a month after the date of the incident there are material discrepancies between the complaint and his evidence in Court. About the assault on Ranjit he stated in the complaint that Bibhuti shot at him from a point blank range when Ranjit ran up to the first floor and Bimal Thakur dragged him down and shot at him and other accused persons also opened fire. In his complaint he has not mentioned anything about Ranjit shouting "same side karbenna etc." He is also silent in the complaint about any part being played by Chitta Ganguly dragging out Ranjit on to the road. About the assault on Samir he has stated in his complaint that Shew Mongal shot at him and several shots were opened by the accused persons. He has not mentioned anything about Shew Mongal, P.R. Dey and Anil Maitra running after Samir and dragging him on the road and all three firing shots at him as he has stated in his evidence in Court. 57. If Banoy's evidence be accepted there should be only two gun shot injuries on Ranjit whereas P.W. 9 found four gun shot injuries on him and P.W. 7 found three. As regards Samir Benoy has accounted for four injuries whereas P.W. 6 found only two; although P.W. 10 found four including one on the left thigh. 57. If Banoy's evidence be accepted there should be only two gun shot injuries on Ranjit whereas P.W. 9 found four gun shot injuries on him and P.W. 7 found three. As regards Samir Benoy has accounted for four injuries whereas P.W. 6 found only two; although P.W. 10 found four including one on the left thigh. Benoy claims to have witnessed the brutal killing of his two brothers, but when he was produced before the learned A.C.P.M. on the next day and was released on bail he did not make any complaint to the learned Magistrate about the assault on his brothers. If Benoy had actually seen and recognised the assailants of his two brothers, what was there to prevent him from bringing this matter to the notice of the learned Magistrate ? Till the belated complaint (Ext. 2) is filed before the learned Magistrate more than a month after the incident, Benoy himself does not take any steps in the matter. The oral and the written complaints said to have been filed before the Commissioner of Police and the Governor by his parents have not been proved by the prosecution. These undoubtedly were very important documents which would have supported or contradicted the case as sought to be made out by the prosecution in the course of the trial. 58. According to Benoy, after the firing had taken place at Shympukur Street all the accused persons boarded the cars and they came to Rajar Ghat. That Shew Mongal could not have gone to Rajar Ghat, let alone stay there for about an hour, is evident from the fact that he was examined at about 10.05 p.m. by P.W. 6 at the R.G. Kar Hospital. Ext. 4/2 also indicates that P.R. Dey was with him and from Ext. D/1 it appears that Chitta Ganguly also assisted P.R. Dey in removing Shew Mongal Singh to the hospital. Therefore P.R. Dey and Chitta Ganguly also could not have accompanied the police party to Rajar Ghat. The damage caused to the prosecution case by Benoy was sought to be repaired through P.W. 2 Manick who has in his evidence stated that on the way from Shyampukur Street to Rajar Ghat Shew Mongal Singh was dropped in the Jorabagan Thana. 59. The damage caused to the prosecution case by Benoy was sought to be repaired through P.W. 2 Manick who has in his evidence stated that on the way from Shyampukur Street to Rajar Ghat Shew Mongal Singh was dropped in the Jorabagan Thana. 59. If the evidence of Benoy and Manick about the Rajar Ghat episode be true, they could not have reached the Shyampukur P.S. before 11.30 p.m. that night, whereas P.W. 8 Jahar Ghosh has in his evidence stated that he did find his brother Manick at the said police station at about 11.00 p.m. that night. It is also inherently improbable that the police party would take Benoy and Manick to Rajar Ghat in the same jeep and in their presence and hearing the order for silencing Samir would be given and Anil Maitra would shoot Samir in the very jeep. If the accused had shot Ranjit and Samir in such a merciless manner, would they become merciful when it came to Benoy and Manick and give them an opportunity of creating evidence against them ? 60. Manick is undoubtedly a very important witness as far as the prosecution is concerned because he was with Benoy right from the beginning of the incident till they were released on bail by the Magistrate on the following day. Surprisingly in the list of witnesses appended to the petition of complaint Manick's name does not find any mention. 61. Manick in his evidence has accounted for two injuries each on Ranjit and on Samir. It need not be repeated that the post-mortem doctors found 3 and 4 injuries, on the persons of Ranjit and Samir respectively; whereas P.W. 6 found 1 and 2 injuries on their persons. 62. According to the evidence of Harshanath Chakraborty, he had sent Ranjit and Samir to look for Benoy as he was late and they wanted to have their night meal together. Knowing this, would Benay wait for Manick on the road even if the latter had asked him to wait till he got sweets from his shop ? If Manick had anything to tell Benoy he could have told him in the house because they lived in the same building. Moreover why should Ranjit and Samir both wait on the roak after they had met Benoy, especially when their father was anxious about Benoy being late ? 63. If Manick had anything to tell Benoy he could have told him in the house because they lived in the same building. Moreover why should Ranjit and Samir both wait on the roak after they had met Benoy, especially when their father was anxious about Benoy being late ? 63. Although in the petition of complaint Harshanath's name finds place as witness No. 2 and he claims to be an eye witness to the incident, nowhere in Ext. 2 is there any mention about his being present at the time when the incident happened or that he tried to prevent the police officers from shooting at Ranjit and Samir. Harshanath claims to be a retired A.S.I. of the Calcutta Police. As such he is expected to know how an F.I.R. is lodged. If Harshnath actually saw the killing of his sons by the appellants and the other officers, would he not at the earliest possible opportunity lodge a written F.I.R. or file a complaint before a competent Court, instead of making a verbal complaint to the Commissioner of Police which is of no value ? 64. P.W. 8 Jahar also claims to have seen a part of the incident but his name also does not find place in the list of wit nesses in the petition of complaint. According to his evidence he went to the place of occurrence on hearing the cries of his brother Manick that he was being taken away by the police. Manick deposed that he cried for help calling to his neighbours when he was being assaulted by the police and held by the collar of his shirt before being forced into the jeep. By this time the purported firing was over. Therefore P.W. 8 could not have witnessed any part of the actual incident. 65. P.W. 9 Shib Nath Dutta claims to have known Bimal Thakur from before. This appellant allegedly lived in Telipara lane where Shibnath also resided. According to P.W. 9's evidence Bimal Thakur fired a shot at Samir after which Samir fell at a spot near a rain water pipe. None of the other alleged eye witnesses have in their evidence implicated Binal Thakur in the shooting of Samir. Therefore, whose evidence as regards this aspect are we to accept; the evidence of Shibnath or the evidence of the other witnesses ? 66. None of the other alleged eye witnesses have in their evidence implicated Binal Thakur in the shooting of Samir. Therefore, whose evidence as regards this aspect are we to accept; the evidence of Shibnath or the evidence of the other witnesses ? 66. The alleged eye witnesses have given vivid accounts of the incident ascribing specific parts to the individual accused. If they really saw the incident from such a close range, as some of them claimed to have dong then why should there be such glaring discrepancies between their different versions ? The learned Advocate General's explanation is that due to due passage of time and failing memories the witnesses may have made mistakes. We would understand a witness saying that he noticed X, Y and Z at the place of occurrence; but as the incident happened 9/10 years back, he cannot say what definite parts each of them played. But to ascribe specific parts to X, Y and Z and the say that he may be mistaken as the incident happened long ago does not hold much water. 67. Through P.W. 2 Manick the prosecution has tried to introduce a motive for the shooting. According to Manick, Bibhuti Chakraborty fired at Ranjit after Bimal Thakur had identified him as Ranjit and a dalal of the C.P.I. (M.), Samir, Benoy and Manick were also near Ranjit. None of these three were similarly identified, yet for some inexplicable reason Samir was picked out and shot but the other two were left unharmed. The police party could not have known beforehand that Harsh Nath would be sending Ranjit and Samir to look for Benoy and the two of them would be sitting on the roak of their house at that hour of the night. Then what was the point in the police vehicles coming to Shyampukur Street and stopping in front of premises No. 71 as if pursuant to a prearranged plan ? If it was the intention of the police party to exterminate Ranjit and his brother for a particular reason, and Ranjit was known to Bimal Thakur from before (as per evidence of P.W. 2), the killing could have been done in a more surreptitious manner and not with so much fanfare with practically a regiment of police in three vehicles and front of so many people. The incident, therefore, could not have occurred in the manner as sought to be made out by the prosecution. There must have been some sort of a skirmish on Shyampukur Street between the police party, which happened to come there in the course of patrolling, and some persons including Ranjit and Samir. 68. For the reasons stated above we must hold that the prosecution has not been able to bring home either of the charges against any of the appellants beyond all reasonable doubt. As such, and also in view of the fact that the appellants are fully protected by the superior order passed by Bibhuti Chakraborty, we must allow the appeal and set aside the conviction and sentences passed on Shew Mongal Singh, Bimal Thalsur, Chitta Ganguly and Anil Maitra on both the counts under S.302 read with S.34 of the I.P.C. and acquit them of the charges. They are discharged from their bail bonds. D. C. CHAKRAVORTI, J. :- I agree. Appeal allowed.