Judgment R.N.Thakur and B.P.Griyaghey JJ. 1. The appellant has been convicted under Sec.302 of the Indian Penal Code (shortly to be referred to as the Code) and has been sentenced to undergo rigorous imprisonment for life. This is a very unfortunate case. The deceased and the appellant were full brothers. Another accused Agnu Mandal, who died before trial commenced, was the father of this appellant as well as of the deceased. It is said that about a year before the occurrence, there was separation, in which the appellant and accused Agnu Mandal already dead lived together and the deceased Mahendra Mandal separated himself. 2. On 26-11-1976 at about 7 to 7.30 A.M. in the morning the deceased Mahendra Mandal had gone to plough his field. His servant PW 7 Sitwa Bagwe came to his house to take barley seeds to be sown in the field. PW 5, wife of the deceased Mahendra Mandal was in her house. When PW 7 Sitwa was taking barley seeds, Agnu Mandal came and assaulted him, due to which Sitwa PW 7 sustained some injury. He (PW 7) fled away and went to the field where the deceased was ploughing and informed him that he was assaulted by his father. Therefore, he would not go to his house. Hearing this news deceased Mahendra came to his house and asked his son Pramod to drive the bullocks to his bouse. When the deceased came to his house, this appellant along with his father Agnu Mandal came in the Angan of the deceased hurling abuses to him. This appellant had a sword in his hand and Agnu had a Farsa. This appellant and Agnu assaulted the deceasd in the Angan with their weapons. His wife (PW 5) and his son Pramod entered in the room to save themselves and they closed the door from inside. This appellant and Agnu tried to break the door and when they were unsuccessful in breaking the door, they took out the door planks and entered into the room. This appellant assaulted the deceased with sword and Agnu assaulted with Farsa. Deceased fall down. Thereafter Agnu Mandal got on the chest of the deceased and caught hold of his both hands. This appellant then cut the throat of the deceased with sword with the result that the deceased died then and there. This appellant assaulted the deceased with sword and Agnu assaulted with Farsa. Deceased fall down. Thereafter Agnu Mandal got on the chest of the deceased and caught hold of his both hands. This appellant then cut the throat of the deceased with sword with the result that the deceased died then and there. PW 5 was also assaulted by this appellant with the sword. PW 5 was in the family way at that time and the time of delivery was almost complete. She was assaulted on her abdomen due to which the baby in the womb also received injury with the result that the baby died in the womb itself. She sustained several injuries. She became unconscious, but after sometime she regained her senses. Villagers assembled there. She narrated about the occurrence to the villagers. 3. The brother of PW 5 Ramlal (PW 11) had come to the house of the deceased one day prior. The mother of PW 5 was also in the house, it is said that when PW 11 wanted to save his sister and sisters husband, this appellant chased him to assault and due to fear he fled away in the village and raised alarm. PW 6, who is mother of PW 5 also tried to save her son-law and her daughter. She was also pushed aside and was dragged out of the house. Thereafter this appellant and his father closed the door of the Angan from inside and committed the aforesaid offence. 4. PW 11 along with the village Chaukidar went to the police station and gave information about the occurrence which led to institution of this criminal case against this appellant as well as his father. The Omcer-in-charge of Godda police station came to the place of occurrence, .investigated the case and after investigation submitted charge-sheet against this appellant as well as his father Agnu Mandal. 5. In course of trial 13 witnesses were examined on behalf of the prosecution. Appellant denied the allegation. From the cross-examination of the witnesses his further case appears to be that PW 5 had illicit relationship with PW 6 and when it was detected by her husband, he (deceased) tried to assault PW 5, in which the PW 7 killed the deceased. Hower, no defense witness was examined on his behalf. 6. Appellant denied the allegation. From the cross-examination of the witnesses his further case appears to be that PW 5 had illicit relationship with PW 6 and when it was detected by her husband, he (deceased) tried to assault PW 5, in which the PW 7 killed the deceased. Hower, no defense witness was examined on his behalf. 6. The learned Counsel appearing on behalf of the appellant has submitted that the trying court failed to appreciate the evidence properly and therefore, he could not come to a right conclusion. It is further argued that PWs 11 and 6 were not present at the time of occurrence as alleged by them. Rather they came subsequently on hearing about the death of the deceased. 7. Out of 13 witnesses examined on behalf of the prosecution PW 5 is the solitary witness, who speaks of the entire occurrence. PWs 6, 7 and 4 did not see the actual occurrence of assault. PWs 1, 9 and 10 are the Medical Officers. Out of them PW 1 had conducted the post-mortem examination of the deceased and he simply gave a first aid to PW 5, PW 9 had examined and treated PW 5 and PW 10 conducted post-mortem examination on the dead-body of the baby, who was killed in the womb itself. PWs 2 and 3 have been tendered and PW 13 is the formal witnesses, who has proved the case-diary. PWs 8 and 12 have been declared hostile and have been cross-examined by the prosecutor. 8. From the facts described above, it will appear that in this case father and the full brother of the deceased were accused and according to the prosecution case the deceased was brutally murdered by them. PW 5 also received several injuries which will be apparent from the evidence of PW9. 9. Now, let us first consider the medical evidence. PW 1 was Medical Officer attached to the Sub-divisional Hospital, Godda on 26-11-1976 and on the same day at about 10.35 p. m. he examined PW 5 and gave first aid. As her condition appeared to be serious, she was forwarded to Bhagalpur hospital for treatment. He conducted the post-mortem examination on the dead-body of the deceased on 27-11-1976 at 11.45 p. m. and found the following injuries: I. Incised wound 4 1/2" X 1/2 x bone deep obliquely on right side of forehead. II. As her condition appeared to be serious, she was forwarded to Bhagalpur hospital for treatment. He conducted the post-mortem examination on the dead-body of the deceased on 27-11-1976 at 11.45 p. m. and found the following injuries: I. Incised wound 4 1/2" X 1/2 x bone deep obliquely on right side of forehead. II. Incide wound 3" x 1 1/2" X Bone deep on right Arm below elbow. III. Incised wound 2" X 1 1/2" X Bone deep obliquely on right arm above elbow. IV. Incised wound 1 1/2" X 1" X Bone deep on left wrist. V. Incised wound 1 1/2" x 1" x muscle deep on left arm. VI. Incised wound 8" x 2 1/2" on upper part of neck cutting trachea muscle, nerves and vessels. VII. Penetrating wound 1" X 1/2" X 1 1/2" deep on right arm below deltoid muscle. VIII. Incised wound 1 1/2" x 1 x bone deep on left thigh knees. 10. All the injuries had been caused by sharp cutting weapon like sword, except injury No. 7 which was caused by sharp pointed weapon Death in his opinion was due to shock and hemorrhage resulting from all the injuries, specially injury No. 6 which was sufficient to cause death in the ordinary course of nature. Time elapsed since death was within 36 hours. According to him, injury No. 7 might have been caused by head portion of sword. The post mortem report is Exhibit I. He did not remember when PW 5 was brought to his hospital and whether she was conscious or unconscious. PW 9 was attached to the Bhagalpur Medical Hospital on 27-11-1976 and on the same day at about 5.20 a. m. he examined Kanti Devi PW 5 and found the following injuries on her person: (i) Two incised and punctured wounds on the left side of abdomen the size of 1 1/2" X 1/2 penetrating into abdomen with omentum coming out and 1" X 1/2 x 1/2" respectively. (ii) One punctured wound on the right side of abdomen i. e. byopastrium 3" x 1/2" x penetrating into abdomen. (iii) Two incised wounds on right hand of the size of 1" x 1/2" x 1/2" and 1/2" x 1/2" X 1/2" x 1/6" respectively. (iv) One incised wound on right forearm 3/4" X 1/2" X 3 1/4". (ii) One punctured wound on the right side of abdomen i. e. byopastrium 3" x 1/2" x penetrating into abdomen. (iii) Two incised wounds on right hand of the size of 1" x 1/2" x 1/2" and 1/2" x 1/2" X 1/2" x 1/6" respectively. (iv) One incised wound on right forearm 3/4" X 1/2" X 3 1/4". (v) One incised wound in the front of head 2 1/2" X 1/2" X bone deep. (vi) One punctured wound on the right side of abdomen 2 1/2" x 1" x penetrating into abdomen with omentum coming out. (vii) One incised wound on the back limbosacran region 3 X 1" X 1/2". (viii) One incised wound in front of neck on the right side 1/2" X 1/6" x 1/4". (ix) One incised wound on the back of neck on the right side 1/2 x 1/2" X 1/6". All these injuries were caused by sharp cutting weapon viz. sword. Injury Nos. 2 and 6 were found to be grievous and rest were simple in nature. All injuries were aged within 24 to 48 hours. The victim lady (PW 5) was pregnant at full term. After laboratory it was found that there were two perforating of the size of 1 x 1X each on upper part of uterus--factus was found dead. There was also one perforation 1/2" x 1/2" over anterior wall of cecum. Therefore, from the aforesaid medical evidence as well as from other evidence it is well proved that the deceased Mahendra Mandal died of injuries which he had received. It is also quite proved that PW 5 had received injuries with result that her baby in the womb also received injuries, which resulted in the death of the baby. 11. Now main question remains to be considered is whether the deceased and PW 5 were assaulted by this appellant in the manner, as alleged by the prosecution. At the outset it must be stated that no evidence has been led on behalf of the prosecution to indicate the immediate cause of the occurrence. On the point of motive, the evidence that has been led is that about a year before the occurrence there was a partition of property in between her husband the appellant and the father Agnu Mandal. A Panchnama was also prepared which remained with this appellant. On the point of motive, the evidence that has been led is that about a year before the occurrence there was a partition of property in between her husband the appellant and the father Agnu Mandal. A Panchnama was also prepared which remained with this appellant. It is further said that during this period of one year sometime there used to be some quarrel in between the deceased and the appellant and Agnu Mandal in respect of partition as well as irrigation. But there was no case. On this point we have the evidence of PW 5. According to her the partition was effected at the instance of Mukhia and Sarpanch and whenever there was any quarrel Mukhia and Sarpanch used to be informed, but unfortunately neither the Mukhia nor the Sarpanch has been examined in this case to say anything. Though a Punchanama was prepared according to her own evidence, it remained with the appellant and as such, it has not been produced in the court. It is also somewhat surprising as to why copy of the Panchanama was not given to the deceased when partition was effected by way of Panchayat. That is all the evidence on the point of motive. On the day of occurrence, as stated above, when PW 7 came to take the seeds of barley he was assaulted by Agnu. No reason has been assigned as to why PW 7 was assaulted on that date and at that time, PW 5 has herself admitted in her cross-examination that before Sitwa (PW 7) was assaulted on the date of occurrence there was no quarrel or any altercation in between Sitwa on the one hand and either this appellant or his father on the other hand. Therefore, it has remained mysterious as to why Sitwa was assaulted by Agnu on the day of occurrence. According to the prosecution case Sitwa went to the field where the deceased was plouging and informed that he was assaulted by his father and therefore, he would not go to his house. Hearing this, he came to his Angan and then this appellant along with his father, who lived in separate house came in the Angan and started assaulting the deceased. Hearing this, he came to his Angan and then this appellant along with his father, who lived in separate house came in the Angan and started assaulting the deceased. Here also nothing is stated on behalf of the prosecution as to why this appellant and his father started assaulting the deceased as soon as he came back to his Angan from the field. Therefore, as to what was the reason for the assault of PW 7 and the deceased, it is shrouded in mystery as yet. 12. How the occurrence started, the prosecution evidence is not consistent on this point also. According to the evidence of PW 5 the deceased had gone to his field in the morning of the day of occurrence to get his land ploughed. Her mother PW 6, her brother PW 4 and her son were in the house when PW 7 came to take barley seeds and as soon as Sitwa came he was assaulted by Khanti, which was thrown by Agnu Mandal. The Khanti caused injury on his person and then Sitwa fled away. PW 6 the mother of PW 5 says that in the morning of the occurs rence her son-in-law (the deceased) had gone to his field with plough and bullocks. PW 7 came to their house to take barley seeds. When PW 7 had weighed the barley seeds Agnu Mandal came and assaulted him (PW 7) and thereafter he fled away. PW 7 is the servant himself. In examination-in-chief he says that in the morning of the day of occurrence he had gone to plough the field of the deceased, which is situated in Raga Mouza. The deceased was also there. From there he came to bring barley seeds. Ay soon as he came out with barley seeds in the Gali, Agnu Mandal assaulted him with Khanti and then he fled away. The basket containing the barles seeds fell down. Then he volunteered to say that he was assaulted in this room itself and there is no varendah in front of the room in which he wa-assaulted and then he went to the field where Mahendra was ploughing hie field. According to him, the son of the deceased PW 3 was also in that very field at that time. When he informed Mahendra about the assault, he came to his house, but his son (PW 3) did not accompany him. According to him, the son of the deceased PW 3 was also in that very field at that time. When he informed Mahendra about the assault, he came to his house, but his son (PW 3) did not accompany him. Then it is said that PW 3 brought the plough from the field. On the day when PW 3 was examined in court, he was estimated to be aged 9 to 10 years in the year 1981. The occurrence is alleged to have taken place in the year 1976. Therefore, he must be about 4 to 5 years on the day of occurrence. In such circumstances, it does not stand to reason as to why PW 3 also went to that field where his father was ploughing, specially when it situated in another village. According to the evidence of PW 5 when the deceased had gone to plough his field PW 3 was in the house and remained there with his Mami and Mama till the servant PW 7 came to take barley seeds. 13. Even on the point that PW 7 had come to take barley seeds, the prosecution evidence is not consistent. PW 5 has admitted that she was also examined by a Magistrate in course of investigation. But she did not remember whether she had stated before that Magistrate that in the morning of the day of occurrence PW 7 had come to her house to take plough and bullocks. The said statement recorded by the Magistrate has not been brought on the record. According to the evidence of PW 7 himself when he was getting down in the Gali with basket containing barley seeds, he was assaulted. But there is nothing on the record to show that the Investigating Officer found any barley seeds scattered either in the Gait or near about that. Of course, he has tried to explain by volunteering himself that the room and Gali is connected having no varendah in between them, but unfortunately in this case the Investigating Officer could not be examined, nor the entire diary has been exhibited. From the evidence of witnesses it will appear that the Gali is in the east of the house of the deceased. Therefore, in view of all these it becomes suspicious whether PW 7 had gone to take barley seeds and when he was taking away the barley seeds he was assaulted. From the evidence of witnesses it will appear that the Gali is in the east of the house of the deceased. Therefore, in view of all these it becomes suspicious whether PW 7 had gone to take barley seeds and when he was taking away the barley seeds he was assaulted. According to the prosecution case PW 7 received injury in the house of the deceased himself. Blood also came out of his injury but there is no evidence to show that any drop of blood was found anywhere in the Angan or near about the house of the deceased. PW 7 has admitted that he got himself examined by a doctor of Godda after twelve days, but neither the injury report has been produced in court nor the said doctor has been examined to say as to what type of injury he had received. In this very connection, one statement given by PW 7 himself is very relevant to be considered. In cross-examination PW 7 admits that Agnu had suspicion that he was of loose character and he had illicit connection with wife of the deceased. Therefore, it is clear from his admission itself that there was suspicion about his character and about his relationship with PW 5. In this very connection, his further admission has to be taken note of that he has himself admitted that he was examined by the Investigating Officer after 10 to 12 days of the occurrence, because he had gone to his father-in-laws house after the occurrence. But in cross-examination he admits that he had not stated before the Investigating Officer that he had gone to his father-in-laws house and that is why he could not be examined earlier. As stated above, unfortunately, the Investigating Officer could not be examined in this case nor diary has been exhibited. But fact remains that he (PW 7) did not appear before the Investigating Officer for his evidence till 10 to 12 days after the occurrence. 14. If the prosecution case, as placed before the Court is judged in this back-ground, the story, as stated by PW 7 about his presence and assault on his person becomes very doubtful and it appears that correct picture has not been brought to the court. If he was assaulted by Agnu and had received bleeding injury, why his medical report was not produced in court. If he was assaulted by Agnu and had received bleeding injury, why his medical report was not produced in court. Why the doctor, who examined him has not been examined As stated above the reason for his presence, as given in Court is not consistent with the reason given earlier. At the earliest stage it was said that he had gone to take plough and bullock, but in court it is said that he came to take the barley seeds. If the story of taking barley seeds goes away, then his presence in the house of deceased in his absence itself becomes subject-matter of suspicion, and this suspicion is all the more strengthened by the fact that he did not appear before the Investigating Officer for ten to twelve days. 15. Apart from all these, according to defense, the occurrence took place in the night itself when the deceased detected PW 7 along with PW 5 in the house he lost temper and started assaulting PW 5 and PW 7. It has further been argued that as the deceased had suspicion on the character of his wife, therefore, main assault was committed on her abdomen, most likely with an intention to see that the baby in the womb was killed as the deceased had suspicion that his wife was in family way due to illicit connection with PW 7. Of course no witness has come to say anything on this point, but there are certain circumstances which support this argument. As stated above, PW 7 has admitted himself that Agnu had suspicion that he had illicit connection with PW 5 and this admission along with the conduct of PW 7 that he did not appear before the Investigating Officer for ten to twelve days is a great circumstance which lends support to defense version. No evidence has been led to prove injury on his person. Why PW 7 did not go to the doctor soon after the occurrence if he received injury in the manner as alleged by the prosecution. Does this conduct of PW 7 not indicate some thing else ? The post-mortem of the deceased has been exhibited as Exhibit 1. From Exhibit 1 it will appear that semi-digested articles were found in the stomach of the deceased at the time of post-mortem examination. There was gas in small intestine. Does this conduct of PW 7 not indicate some thing else ? The post-mortem of the deceased has been exhibited as Exhibit 1. From Exhibit 1 it will appear that semi-digested articles were found in the stomach of the deceased at the time of post-mortem examination. There was gas in small intestine. Of course, the doctor PW 1 was not questioned on this point, but Exhibit 1 is the document exhibited on behalf of the prosecution itself, which shows that at the time of post-mortem examination semi digested articles were found, in the stomach. Similarly, gas was also found in the small intestine. According to the prosecution case the occurrence is alleged to have taken place at 7.30 a.m. in the morning. There is no evidence to show that he had gone to the field after taking food. Generally a man, after he gets up in the morning, attends the call of nature, washes his mouth and then he follows his daily routine work. Therefore, in normal course it is expected that the deceased might have attended the call of nature before he went to plough his field. But still gas was found in his stomach. 16. PW 2 is a tendered witness. In his cross-examination he has admitted that his house is just in front of the house of the appellant and he had heard Hulla in the house of Mahendra in the night and the next morning he went to his house and saw Mahendra lying dead. This witness was not cross-examined by the Public Prosecutor. PWs 8 and 12 have also stated that they heard Hulla in the night itself, but they have been declared hostile and they were cross-examined by the Public Prosecutor. The learned Counsel appearing for the State has very vehemently argued that their evidence on this point should not be looked into, because that is tampered evidence. No doubt, these two witnesses were declared hostile and were cross-examined, but their evidence gets corroboration on this point by the evidence of PW 2 as well as by Exhibit 1 which shows that undigested food was found in the stomach. Therefore, it is very difficult to say that PWs 8 and 12 have given false evidence on this point. 17. Therefore, it is very difficult to say that PWs 8 and 12 have given false evidence on this point. 17. According to the prosecution case itself, there are several houses near about the place of occurrence, but no independent witness has come to support the prosecution case specially when a ghastly murder was coramited by the father of his own son and pregnant daughter-in-law was so seriously assaulted. PW 4 has stated that Sibu Sah is the Bhagina of his father. Chinti is the daughter of said Sibu Sah and PW 11 is the full brother of aforesaid Chinti. Therefore, PW 4 is admittedly a relation of PW 11 and PW 5. Other villagers PWs 8 and 12, as stated above, did not support the prosecution case. The Mukhia or the Surpanch has not been examined to say anything. 18. Occurrence took place on 26-11-1976 about 7.30 A.M. Postmortem was conducted on 27-11-1976 at 11.45 A.M. and time elapsed since death was within 36 hours. PW 9 examined PW 5 on 7.7-11-1975 at 5.20 a.m. and found injuries on her person aged about 24 to 48 hours. PW 10 held post-mortem examination on the dead facts of the child on 28-11-1976 at 10 A.M. and found injuries aged in between 36 to 72 hours. Therefore, aforesaid findings of the doctors also lend support to the submissions of defense that occurrence took place in the night. 19. Much has been argued on behalf of the State that in a criminal case motive is not required to be proved specially when there is eye-witness to the occurrence. No doubt in every criminal case motive is not required to be proved. But there are certain cases, where a natural question arises in the mind as to why the occurrence has taken place. In the present case father is alleged to have killed his own son. After assault when the deceased fell down, it is said that father accused caught hold of his both hands, sat on the chest and then appellant cut his throat by sword. There is nothing on the record to show that the father had become mad or was an abnormal man. In that situation a question must arise in the mind of a normal man as to why a father would go to the extent of killing his own son in such a brutal manner. There is nothing on the record to show that the father had become mad or was an abnormal man. In that situation a question must arise in the mind of a normal man as to why a father would go to the extent of killing his own son in such a brutal manner. A motive has been thrown by saying that there was a partition about a year before the occurrence and there used to be some quarrel for share as well as for irrigation, but nothing has been said that either on the day of occurrence or in near past there was any quarrel. There is nothing to show that the deceased had done any act, which might have provoked the appellant and his father to go to the extent of killing him. As stated above, at the first instance, his servant PW 7 was assaulted by the father of the deceased. Why he was assaulted ? No reason has been assigned by the prosecution whatsoever. The father or appellant might have some grievance against the deceased for partition, but what grievance they had with PW 7 on that date ? It is shrouded in mystery. Deceased, when came to his house did not say any thing either to his father or to his brother. In that situation why he was killed ? It is not explained satisfactorily. 20. There is one more peculiar aspect of the case. From the evidence and from the nature of the injury found on PW 5 it is clear that the assailant, whoever might be had the intention to kill the baby in the womb and therefore, serious injuries were caused on the abdomen. According to the prosecution evidence itself the son of the deceased (PW 3) was present in the room at the time of the occurrence. But he was not touched. Not even a slap was given to him. 21. According to the prosecution case when the deceased came in his Angan this appellant and his father came and assaulted him in the Angan with the sword and Farsa, but there is nothing to show on the record that even a drop of blood was found in the Angan. Due to non-examination of Investigating Officer full details of the place of occurrence could not come on the record. 22. The presence of PW 11 also is not above board. Due to non-examination of Investigating Officer full details of the place of occurrence could not come on the record. 22. The presence of PW 11 also is not above board. According to the evidence of PW 11 the son and daughter of the deceased had gone to his house (Nanihal) about fifteen days back and he had brought them to the house of the deceased in the previous night and he stayed there in the night. PW 6 says that as her daughter was in a family way, therefore, she had come to the house of the deceased about 14-15 days back to look after her. It is to be remembered that PW 6 is the maternal grand-mother (Nani) of the children of the deceased. If Nani was staying at the house of the deceased, in a normal course, the children would not have gone to the house of Nani-Nana in absence of Nani specially when Nani is at their house. 23. For the reasons stated above, a reasonable suspicion arises about the manner of occurrence as given by the prosecution in court. Therefore, we find and hold that the appellant is entitled to get benefit of doubt. Accordingly, the appeal is allowed, the order of conviction and sentence, passed against the appellant are set aside. The appellant is discharged from the liability of his bail-bond.