GIBINDA CHANDRA CHATTERJEE, J. ( 1 ) THESE two matters namely, Criminal Appeal bearing No. 43 of 1982 and Criminal Revision bearing No. 835 of 1982 have arisen out of a. judgment delivered on 22-1-1982 by the Additional Sessions Judge, 3rd court, Murshidabad in Sessions Trial No. 1 of December, 1981. In all 5 persons namely (1) Bajjel Haque Choudhury, (2) Amjad Sk. , (3) Gora Mal, (4) Tamej Chowdhury and (5) Nurul Sk. figured as accused in that trial. The gravament of charge as against these 5 persons was that on or about 17th day of May, 1979 the accused persons assembled together as members of an unlawful assembly, being armed with deadly weapons and in furtherence of their common intention assaulted one Niamat Mirza at Janshi Bus Stand, P. S. Sagardighi so much so that Niamat expired on the next morning at the local Hospital. Charges under section 148 I. P. C. , under section 149/302 I. P. C. and 34/302 I. P. C. were framed as against all these accused persons. The prosecution case briefly put stood as follows. ( 2 ) THE deceased Niamat Mirza was enjoying a cup of tea at Anjins Tea Stall situate at Jamhi Bus Stand on 17/5/1979 at about 5 p. m. The aforesaid 5 accused persons entered into the Tea Stall, dragged Niamat outside the Stall and in front of the Tea Stall they all assaulted him with iron rods, lathi and cycle chains so much so Niamat fell flat on the Kancha portion of the road. Seeing the incident witnesses flocked to that place and Niamat was taken to Jangipur Hospital where in presence of the attending Dr. SN. Bhakat, P. W. 5, Niamat disclosed the names of his assailants. This disclosure was made at about 7. 30 p. m. On the next morning, Niamat expired. At about 4. 30 a. m. on the same morning, P. W. 1 Kazi Kadam Rasul, a resident of village Sitalpara, P. S. Sagardighi lodged a FIR. with Sagardighi P. S. On the basis of the FIR. (Ext. 1), the 1. 0. of the Police Station started Sagardighi P. S. Case No. 12 dated 18/5/1979 against the accused persons. In course of the investigation the 1. 0. visited the P. O. in the same morning, prepared a sketch map (Ext. with Sagardighi P. S. On the basis of the FIR. (Ext. 1), the 1. 0. of the Police Station started Sagardighi P. S. Case No. 12 dated 18/5/1979 against the accused persons. In course of the investigation the 1. 0. visited the P. O. in the same morning, prepared a sketch map (Ext. 2) seized the blood stained lungi of the deceased as per seizure list, (Ext. 3) and examined the witnesses under section 161 Cr. P. C. Thereafter, in due course of the investigation the accused persons were committed to the Court of Session at Murshidabad to stand their trial. In all 12 P. Ws. including Police Officers and Doctor were examined before the learned Additional Sessions Judge, Murshidabad. The learned Additional Sessions Judge found that no deadly weapon was used, that there was no assault on any vital portion of the body of the deceased, that the accused persons had no common intention whatsoever to put an end to the life of Niamat. The learned Additional Sessions Judge also found that before the Hospital Doctor names of only 3 accused persons, namely, (1) Gora Mal, (2) Bajjel Haque Choudhury and (3) Amjad Sk. were given out by the deceased. The residual two accused persons, namely, Tamej Choudhury and Nurul Sk. were acquitted of all the charges. The three accused, namely, Bajjel, Amjad Sk. and Coral Mal were, however found guilty of the offence under section 304, Part II read with section 34 I. P. C. and each of these three accused was sentenced to three years RI. Being aggrieved by the aforesaid judgment of conviction and sentence, the three accused Bajjel, Amjad and Gora have preferred the present appeal. The father of the deceased being dissatisfied with the judgment of acquittal of the accused Tamej and Nurul has filed the revisional application. We have heard both these matters together. ( 3 ) MR. S. P. Talukdar appearing for the appellants has taken us through the evidence of the so-called eye-witnesses of the incident. The alleged eye-witnesses are P. W. 1, Khairul Alam, P. W. 2, Sadrul Alam, PW. 3. Saharab and P. W. 4 Kazi Kadam Rasul. P. Ws. 3 and 4, it appears did not see the accused persons dragging Niamat from the tea stall. They heard about this part of the occurrence from P. W. 2, Sadrul. The alleged eye-witnesses are P. W. 1, Khairul Alam, P. W. 2, Sadrul Alam, PW. 3. Saharab and P. W. 4 Kazi Kadam Rasul. P. Ws. 3 and 4, it appears did not see the accused persons dragging Niamat from the tea stall. They heard about this part of the occurrence from P. W. 2, Sadrul. The learned Additional Sessions Judge disbelieved the evidence adduced by the P. Ws. 3 and 4. P. W. 1 Khairul Alam who claimed to have seen the occurrence was also disbelieved by the learned trial court seeing that he was related to the victims father Saharab, P. W. 3. P. W. 2, Sadrul, however, was fully relied upon by the trial court. The learned trial court also believed the testimony of P. W. 8, Mayez Ali who was, however, declared hostile by the prosecution. The attending hospital Doctor, P. W 5, 5. N. Bhakat was also believed by the learned trial court when the former gave out before him that the deceased had disclosed the names of the three assailants, namely, (1) Gora Mal, (2) Amjad Sk. and (3) Bajjel Haque Choudhury in his presence. The order of conviction of the three accused as aforesaid was thus based on the testimony of P. W. 2, P. W. 5 and P. W. 8. Mr. S. P. Talukdar has, therefore, made strainuous effort to assail the evidence of these three witnesses Mr. Talukdar has contended very vehemently that the learned trial court ought not to have relied upon the testimony of these three witnesses. Mr. Talukdar is right in his submission for the reasons given hereunder. ( 4 ) ACCORDING to P. W. 2, Sadrul, in all 6 persons figured as assailants in his view. They are the 5 accused persons plus one Odud who has since died. The evidence adduced by P. W. 8 Mayez is altogether different. He said that he could see only accused Gora assaulting Niamat and that Gora was accompanied by three other persons at that time. According to P. W. 5 the Doctor, Niamat made a dying declaration before him touching only three persons, namely, Gora, Amjad and Bazzel. It is crystal clear now that the aforesaid versions of the prosecution case given by each of the three persons differs from one another in material particulars. According to P. W. 5 the Doctor, Niamat made a dying declaration before him touching only three persons, namely, Gora, Amjad and Bazzel. It is crystal clear now that the aforesaid versions of the prosecution case given by each of the three persons differs from one another in material particulars. Moreover, we find that P. W. 2 Sadrul ought not to have been believed by the learned trial court in other respects. From the cross-examination of this witness we find that he could not supply the details of the strokes of assaults. He could not say in which postures and in which side of the deceased the accused persons were standing at the locale. In other words, he could not give the details of the case as to how and in what manner the acts of assault were actually made upon the deceased. Sadrul, P. W. 2, indeed, is not a reliable man. He gave out before the 1. 0. that other people (Apar Lokera) dragged Niamat out side the tea stall. In his evidence in cross-examination he, however, departed there from. The expression (Apar Lokera) means and implies that Sadrul himself was doubtful as to the names of the assailants. In his examination-in-chief he said that he spoke about the incident to Saharab and Kadem Rasul. He also disclosed in his examination-in-chief that he, Saharab and Kadem Rasul saw the accused persons at the P. O. and that further that they all filed away as soon as they reached there. It appears from his evidence in cross-examination that he did not disclose all these material particulars before the 1. 0. Such being the state of evidence on record it must be said that P. W. 2 ought not to have been believed by the learned trial court. P. W. 8 Mayez Ali is equally untrustworthy. We have already disclosed hereinbefore that he was declared hostile. Moreover, it is not the case of the prosecution that Niamat was hit by Gora Mal alone and that all the assailants were merely bystanders. No less unreliable is Dr. SN. Bhakat, P. W. 5, P. W. 5 wants us to believe that he recorded the dying declaration of the deceased in the injury report. The injury report is not in the record for our scrutiny. From the evidence of Dr. No less unreliable is Dr. SN. Bhakat, P. W. 5, P. W. 5 wants us to believe that he recorded the dying declaration of the deceased in the injury report. The injury report is not in the record for our scrutiny. From the evidence of Dr. Bhakat we gather that the disclosure was to this effect namely that Niamat was assaulted by Gora, Bajjel and Amjad and others of Sitalpara on 17-5-79 at about 5 p. m. . The portion quoted above does not, in our opinion, tantamount to a dying declaration. Dr. Bhakat confessed that he did not record the dying declaration in the language used by the patient himself. That apart, it will appear from the quoted portion that necessary material particulars of the accused were conspicuously absent there from. Thus it does not appear from the quoted portion that the assault was made at Janshi Bus Stand. The words and others are mostly vague and indefinite. The weapons with which the alleged assaults were made were not also disclosed. Mr. Talukdar is, indeed, right in his submission that the alleged dying declaration sounds most unreliable and absurd, the same being bereft of all material particulars. We entirely agree with this view of Mr. Talukdar. Indeed if the deceased would have made a dying declaration that night in all probability of the matter, the deceased would have made it clear how, why and in what manner he was assaulted. From the evidence of the Doctor we gather that the patient was examined towards the evening and that the patient breathed his last on the next morning. In view of this wide title gap, it is indeed difficult to appreciate the conduct of the attending doctor. The attending doctor could have easily requisitioned the help of a local Magistrate in the matter of recording the FIR. He did not do that. The attending doctor could have as well recorded the dying declaration in the usual question and answer form. He did not do that. He simply recorded the indefinite and incomplete statement that the patient was assaulted by three persons and others. The recording was made as we have already indicated before in the body of the injury report of the patient. The recording could have been easily made in a separate piece of paper so that we could have a glimpse of it. He simply recorded the indefinite and incomplete statement that the patient was assaulted by three persons and others. The recording was made as we have already indicated before in the body of the injury report of the patient. The recording could have been easily made in a separate piece of paper so that we could have a glimpse of it. It is, indeed, well night clear from what we have stated before that the conviction of the three accused/appellants on the basis of the alleged dying declaration and on the testimony of P. W. 2 and P. W. 8 was not justified in the overall facts and circumstances of the case. ( 5 ) MR. TALUKDAR has invited our attention to two special features of the case. First of all he reminds us that Janshi Bus Stand according to P. W. 2 is a very busy place. The alleged incident took place at 5 p. m. , not at dead of night. In all probability of the matter, therefore, the eyewitnesses could have come from the residents of the place near about that Bus Stand. Now, in this case the witnesses, however, are all residents of the village Sitalpara where the appellants also have their residence. The distance in between the Bus Stand and Sitalpara is about a mile. Prosecution has offered no explanation on the record as to why local eye-witnesses were not picked up to prove the case. The second striking feature of the case is the fact that the 1. 0. had received a R. T. message from 0/c, Raghunathganj on the next morning to the effect that Niamat had expired at Jangipur hospital at 11-35 hours and on the basis of this message a U. D. Case bearing No. 37 dated 18-5-79 was started (vide evidence-in-chief of P. W. 10, SI. Sagardighi P. S. ). This evidence clearly falsifies the entire prosecution case. For it transpires from the materials on record that on the very night on 17-5-79 the dying declaration was made by Niamat to Docter, Bhakat, that prior to that Niamat had also disclosed the names before his father and others. It further appears that the father himself and some others as well were present throughout the night anxiously awaiting the well being of Niamat. It further appears that the father himself and some others as well were present throughout the night anxiously awaiting the well being of Niamat. If, therefore, the names of the assailants were already out and were known to the Doctor, to the father and to other P. Ws. no U. D. case whatsoever could have been started next day i. e. on 18-5-79 by the local Police. The starting of the ID. Case thus speaks a volume against the truth of the prosecution. The said episode relating to the death of Niamat is thus shrouded in mystery. The learned trial court let off and acquitted the two accused Tamej and Nurul on the score of what he termed as benefits of doubt. In our judgment, in view of the overall facts and circumstances of the case as adumbrated above, the three co-accused namely Bajjel, Amjad and Gara ought to have been equally treated. In other words, these three accused/ appellants ought to have been given benefits of doubt. ( 6 ) MR. ALTAMAS Kabir, learned Advocate appearing for the petitioner (father of the deceased) has made a grievance that the three appellants before us ought to have been convicted under the graver offence, under section 302 I. P. C. and that at any rate the two accused Tamej and Nurul ought not to have been acquitted. Mr. Kabirs grievance, however, appears to us to the groundless. For we have seen that the names of Tamej and Nurul were not given out by the deceased himself before the attending doctor. There is again not an iota of evidence on the record as to how and in what manner they did inflict injuries upon the deceased. The witnesses who spoke against them are not local men of Janshi Bus Stand area. In his evidence the father of the deceased gave out that the assailants assaulted his son Niamat because Niamat happened to be the Taqbirkar of Hazipur Murder Case (vide examination-in-chief, P. W. 3 ). The details of this murder case are, however, sadly wanting. The evidence of P. W. 3 the father in that respect is not corroborated by any documentary evidence nor by the sworn testimony of the prosecution witnesses, We al e conscious of the legal position that in a murder case, motive of murder does not playa very important part. The details of this murder case are, however, sadly wanting. The evidence of P. W. 3 the father in that respect is not corroborated by any documentary evidence nor by the sworn testimony of the prosecution witnesses, We al e conscious of the legal position that in a murder case, motive of murder does not playa very important part. Where, however, prosecution seeks to impart and ascribe a motive, preceding the act of murder, the prosecution must also explain and prove in all fairness of the matter the material particulars of that motive itself so that a court of law can well understand and appreciate that the murder was committed under a natural and intelligible set of circumstances. We have seen that the prosecution story about the dying declaration alleged to have been made before the attending doctor was devoid of all material particulars. Indeed, the alleged dying declaration was most vague, indefinite and unintelligible. Such being the case, the learned trial court, in our opinion, was perfectly justified in acquitting the two other accused namely Tamej and Nurul. There is thus no substance in the revisional application and the same must fail. ( 7 ) IN the result, the appeal is allowed on contest. The judgment of conviction and sentence passed against the three appellants before us is set aside. We hold that the three appellants are not guilty of the offence under section 304 Part II read with section 34 I. P. C. They are acquitted of the said offence. The accused/appellants may be discharged from their bail bonds. The revisional application is dismissed on contest. Appeal allowed. Revisional application dismissed.