MR. GOBINDA CHANDRA CHATTERJEE, J. ( 1 ) THIS appeal is directed against the judgment date 28-6-85 passed by the learned Additional. Sessions Judge, Midnapore, in Sessions Trial No. 1 of Sept. 1984 whereby the two appellants Lakshman Debnath and Satrughna Debnath were found guilty of an offence under section 302 read with section 34 of the Indian Penal Code and were sentenced to imprisonment for life. Long and short of the charge leveled against them was that on 2-12-83 at Betadighi P. S. Mahisadal they did commit murder by intentionally causing the death of their cousin Subal Debnath. Before the learned Additional Sessions Judge the facts constituting the charge were mainly unfolded by the victims brother Sri dam Debnath (P. W. 1 ). Sridam Debnath described the incident in the following way: I am a resident of Betadighi within P. S. Mahisadal. Since about 10 years last my father Kanai Debnath is missing. We are three brothers. Subal was eldest, I am second and Haridasis our youngest brother. Haridas works as a domestic servant at Calcutta. Both Subal and myself are married and we used to Jive in our ancestral house together. I know these two accused (names and identifies the two accused correctly ). They are sons of Bhuban Chandra Debnath who is elder brother of my father Kanai Debnath. The two accused are thus our cousins. The house of the two accused are only 7/8 cubits from our house to the east. There is a public path way to the south of our houses and it runs east to west. There is a Pan Boroj on the south of that public pathway. There is an Arjun tree on our homestead land. On 15th Agrahayan 1390 B. S. at about 2. 30 p. m. I was on my courtyard. I heard a row between the two accused on the one hand and my elder brother Subal on the other. I saw accused Lakshman had a Chowki in his hand. Chowki is a long handled instrument with 7/8 pointed forks. The accused Satrughna had a cycle chain in his hand. They chased my brother Subal who retreated to his room out of fear. They were quarrelling over cutting of a branch of the Arjun tree. The two accused went inside Subals room and dragged him out. Satrughna then struck Subal with cycle chain. The accused Satrughna had a cycle chain in his hand. They chased my brother Subal who retreated to his room out of fear. They were quarrelling over cutting of a branch of the Arjun tree. The two accused went inside Subals room and dragged him out. Satrughna then struck Subal with cycle chain. Then accused Lakshman pierced his Chowki on the face of Subal. Blood came out and then the two accused started beating Subal with hands and they pushed him towards their house. Then accused Satrughna hit my brother with a branch of Arjun tree all over body. Blood came out from his mouth and other places and he fell down unconscious I cried out and people came to the spot. The two accused thereafter collected the Chowki, chain and branch of Arjun tree and locked the door of there room from inside Srikanta, Niranjan Debnath, Jahar Pramanik and others came. I narrated the incident to them and thereafter took Subal to Khejuriberia P. H. C. Shortly afterwards the doctor told that Subal had died. Then under my instruction Jahar Pramariik took down this written ejahar. I went to Mahisadal P. S. and gave this written ejahar to the police officer. I put my L. T. I. on the written ejahar. Himangshu, Arati Debnath and Narayan Debnath saw the incident. On that night I stayed in the hospital. On the following morning police came and I identified the dead body of my brother Subal to police at hospital. Darogababu held inquest over the dead body there and sent the dead body to Tamluk for post-mortem examination. I took the police officer to our village and showed him the place of occurrence. Daroga babu collected blood-stained controlled earth from the spot by making seizure list. Blood stained Chowki and blood stained branch of Arjun tree were found in the room of the accused Lakshman and Daroga babu seized these articles under seizure list. ( 2 ) THE aforesaid story as introduced by Sridam was sought to be confirmed by three alleged eye witnesses namely by Smt. Arat) Debnath (P. W. 2), Himangshu Sekhar Maity (P. W. 3) and Narayan Chandra Debnath (P. W. 5 ). Dr. Gautam Bera (P. W. 4) is the doctor of Khejuberia Primary Health Center. The injured victim was at first taken to him. P. W. 10 is Dr. Dr. Gautam Bera (P. W. 4) is the doctor of Khejuberia Primary Health Center. The injured victim was at first taken to him. P. W. 10 is Dr. Jagadish Chandra Kuilyawb held post-mortem examination over the dead body on 3-12-83. Jahar Pramanik (P. W. 6) and Srikanta Debnath (P. W. 7) are witnesses of seizure of the almost namely the Chowki (Ext. 1), cycle chain and the branch of the alleged Arjun tree, etc. The seizure was effected by Rampada Monda (P. W. 12), S. I. of police who took over investigation of the case on the morning of 3-12-83. The 1. 0. seized blood stained earth (material ext. III) in presence of witnesses under seizure list ext. 2/2. He drew up a sketch map of the P. O. The map as his evidence shows unfortunately could not be found out at the trial. On 22-1-84 he received post-mortem examination report of Suhal Debnath sent by Dr. Jagadish Chandra Maity who held the post-mortem examination. On 13-3-84 he submitted charge-sheet under section 304/34/448 I. P. C. on completion of investigation. Thereafter in due course, the two accused persons were committed to the Court of Sessions. Before the learned Addi. Sessions Judge in all 12 P. Ws. including the four eye-witnesses, the two doctors and 1. 0. were examined. The learned Addi. Sessions Judge believed the testimony of the eye-witnesses and came to the finding that the injured Subal was really murdered by the two appellants. He accordingly, convicted and sentenced them as already indicated before. Being aggrieved thereby the two appellants have come up in appeal for redressal of their grievance. ( 3 ) THEIR main grievance as set forth in paragraph XI of the memo of Appeal is that the learned judge erred in law in accepting the evidence of the alleged eye-witnesses 1, 2, 3 and 5 inasmuch 85 the evidence and circumstances on record conclusively showed that the incident had not taken place at the time, place and manner as alleged. This grievance has been placed before us in detail by Sri Roy, learned advocate on behalf of the appellants. We shall have to decide whether this grievance is unsubstantial or unreal. Sid by side we shall have also to examine the grievance placed before us by Sm. Joyenti Debnath widow of the victim Subal Debnath. Joyenti bas filed a petition before us under section 357 Cr. We shall have to decide whether this grievance is unsubstantial or unreal. Sid by side we shall have also to examine the grievance placed before us by Sm. Joyenti Debnath widow of the victim Subal Debnath. Joyenti bas filed a petition before us under section 357 Cr. P. C. read with section 482 with a prayer that an order awarding compensation in her favour may be passed directing the appellants to pay to her and her two minor daughters compensation amounting to Rs. 15,000/ -. ( 4 ) LET us first of all discuss and examine the grievance placed before us by Mr. Roy on behalf of the appellants Mr. Roy has contended that the account of the incident as given by the eye-witnesses is not at all probable and that the same could not have happened in the manner as alleged by them. We have given our best consideration to the contention of Mr. Roy and to our mind it appears that the account of the incident as related by the witnesses is not at all worthy of credence. The incident was explained by the witnesses in the following fashion. Sridam and his elder brother Subal (victim) are cousins of the appellants. They have side by side at Betaldighi P. S. Mahisadal. There is an Arjun tree in between the two houses. The same stands on the bastoo land of Sridam and Subal (vide the examination-in-chief of P. W. 1 ). On 2-12-83 at 2. 30 p. m. Subal cut off a branch out of the said tree and this led the trouble. Sridam raised an alarm. There was no preexisting dispute between them relating to the land or the tree. The appellant Lakshman was then carrying a chowki in his hand. The chowki is a long handled instrument with 7/8 pointed forks. The appellant Satrughna had in his hand a cycle chain. Both of them chased Subal with the said weapons and Subal was seized with fear so much so that he had to take shelter in his own room. The two appellants entered inside Subals room and dragged out Subal there from. Satrughna then struck Subal with his cycle chain and Lakshman pierced his chowki on the face of Subal. Not being satisfied with that the two appellants stalled eating Subal with their hand and all the time they pushed him towards their own house. The two appellants entered inside Subals room and dragged out Subal there from. Satrughna then struck Subal with his cycle chain and Lakshman pierced his chowki on the face of Subal. Not being satisfied with that the two appellants stalled eating Subal with their hand and all the time they pushed him towards their own house. The distance between the two houses was only 7/8 cubits. On the way Subal was bit by Satrughna with a branch of Arjun tree all over the body until Subal fell down unconscious on the ground. ( 5 ) IT is difficult to understand and appreciate the aforesaid facts in the way al stated by the alleged eye witnesses namely P. Ws. 1, 7, 3 and 5. Not that the entire tree was cut down by Subal but be only cut off one branch thereof. Ordinarily if from the cuts a branch of such a the it is expected that the branch cutter will be simply rebuked or slapped. It is quite improbable that he would be subjected to such inhuman torture leading to the catastrophe of death. It is not the case of the witnesses that the strokes of assault made upon Subal numbered 1 or 2 or 3. On the contrary the stroke according to them did continue for some time. For Subal was first of all hit by a cycle chain then by a chowki and then by bare hands and last of all by the branch of the Arjun tree. A momentary fit of anger arising out of cutting a branch of a homestead tree or a sudden provocation of this kind may end in fists and blows but ordinarily it does not go further than that. Then again the significant fact of this case as said by P W. 1 Sridam himself is that the Ariun tree is situate on their own bastu land. It is difficult to understand as to why Sridams brother Subal could be assaulted for cutting a branch thereof when they themselves happened to be the owners of the said tree. ( 6 ) A glaring infirmity or improbability of the prosecution case is the absence of women folk of the house of the victim where the incident occurred. The prosecution case is that the victim had taken his shelter inside his own room. ( 6 ) A glaring infirmity or improbability of the prosecution case is the absence of women folk of the house of the victim where the incident occurred. The prosecution case is that the victim had taken his shelter inside his own room. The unchallenged evidence on the record is that Sridam and Subal were then married. It is not the prosecution case that their wives had been elsewhere at that relevant time. What the wives were doing then? Why they did not raise hue and cry over the matter? Why they did not figure as P. Ws. when admittedly the vital part of the occurrence was confined within the four walls of Subal's room? Subals wife has come up before us personally of course being represented by her lawyer with her petition preferred under section 357 read with s. 482 Cr. P. C. Why she did not depose before the 1. 0. ? Why the 1. 0. is silent about their absence at to time of the occurrence? Mr. Roy has rightly argued by saying that important witnesses have thus been withheld by the prosecution. It is significant to note in this connection that in the F. I. R. (Ext. 1) there is no whisper that any inmate of the house or anybody elsewhere did witness the occurrence. For the first time in evidence during trial P. W. gave out that Himangohu (P. W. 3), Arati (P. W. 2 ). Narayan (P. W. 5) did see the incident. We shall see hereafter that these three witnesses are untrustworthy. We have read and reread the written complaint (ext. 1) which was treated later on as F. I. R. After a careful reading of the F. I. R. in between the lines we can simply infer that nobody did eyewitness the occurrence, that witnesses assembled on the spot only after hearing the row and that as soon as witnesses came the assailants made good their escape. There can be thus no possibility of seeing the incident by Himangshu, Arati and Narayan. In his evidence before the court P. W. 1 gave out that hearing the row witnesses like Srikanta Debnath (P. W. 7), Niranjan Debnath (P. W. 8) and Jahar Pramanile (P. W. 6) assembled at the spot and that before them he warranted the incident. There can be thus no possibility of seeing the incident by Himangshu, Arati and Narayan. In his evidence before the court P. W. 1 gave out that hearing the row witnesses like Srikanta Debnath (P. W. 7), Niranjan Debnath (P. W. 8) and Jahar Pramanile (P. W. 6) assembled at the spot and that before them he warranted the incident. Unfortunately for the prosecution these three witnesses did not corroborate P. W. 1 by saying that the incident was so related to them by P. W. 1. ( 7 ) FROM the evidence of P. W. 1 we gather that the nearest P. S. was only 5 miles off the P. O. The occurrence, it is alleged took place at 1. 30 p. m. It is difficult to understand why it took long 4 hours and 15 minutes to lodge the F. I. R. at the Thana. That delay has not been explained. On the contrary it is the defence case that the written ejahar or complaint was lodged on the next morning. It seems to us that the defence version of the Case is true. For it would transpire from the evidence of Sridam Debnath (P. W. 1) and P. H. C. Doctor (P. W. 4) Dr. Gautam Bera that Subal breathed his last at 5. 30 p. m. on 2-12-83. Distance from Subals house up to the Thana is only 5 miles. The evidence of P. W. 1 is that he had to over stay that night in the hospital. We do not understand why he was there for the entire night. He could have easily come back to his house and could have visited the hospital next morning. He did not do so. His evidence is that the 1. 0 appeared at the Hospital next morning. Be that as it may the defence case that the F. I. R. was recorded much later than the stipulated date and hour has got much substance underneath. The materials on the record show that the formal F. I. R could not be sent to the Magistrate before 10- 12-83. This extraordinary delay has not been explained by the prosecution. Mr. The materials on the record show that the formal F. I. R could not be sent to the Magistrate before 10- 12-83. This extraordinary delay has not been explained by the prosecution. Mr. Roy is indeed right when he cites the case of Iswar Singh v. The State of U. P. 1, and argues that the delay in sending the report to the magistrate afforded sufficient time to the prosecution to introduce improvements or atleast sufficient time for falsely implicating his clients. ( 8 ) THE improbability of the prosecution case is apparent on the very face of the evidence of P. W. 1 when he said, none entered into the room of Subal to prevent the two accused from assaulting him. We did not snatch chowki and cycle chain from the hands of the two accused. I did not take any weapons to protect Subal and to chase away the two accused. It is difficult to believe that the younger brother would see his elder brother being assaulted routhlessly by standing aside the assailants as a mere spectator by different weapons one after another for a sufficiently long time without making the slightest effort to snatch away the weapons. The weapons were not very dangerous. They comprised of a fishing instrument cycle chain and a branch of tree. The other alleged eye-witnesses namely Arati (P. W. 2), Himangshu (P. W. 3) and Narayan (P. W. 5) understood the inherent improbability of Sridam's version of the case. These three witnesses therefore contradicted Sridam by saying that they raised protests and tried to save Subal but in vain. These three witnesses are indeed unreliable. We do not believe that these three witnesses made any sincere and joint effort to restrain the accused persons from doing the mischief. P. W. 2 spoke lies when she claimed that appellant Satrughna, had beaten Subal with a cycle chain. He did not reveal such things before the 1. 0. P. W. 3 Himangshu similarly spoke lies when he mentioned about a cycle chain. He too did not whisper - anything of that sort before the 1. 0. (vide P. W. 2 ). P. W. 5 is also unreliable because he did not mention anything about the chowki before the 1. 0. We do not feel it quite Safe to rely upon the testimony of such untruthful witness. He too did not whisper - anything of that sort before the 1. 0. (vide P. W. 2 ). P. W. 5 is also unreliable because he did not mention anything about the chowki before the 1. 0. We do not feel it quite Safe to rely upon the testimony of such untruthful witness. Sri dam and the witnesses again all spoke about the blood stained chowki and blood stained branch of tree (material ext. 1) adding that after the occurrence the accused persons took away those weapons and kept them inside their room. It appears from the evidence of the 1. 0. read with the evidence of seizure witnesses that on the next morning the 1. 0. came to their house and recovered the blood stained weapons from the room. It is indeed fantastic to argue that the accused persons would be so foolish as to keep the blood stained weapons for long 24 hours inside their room in that fashion knowing fully well that those would be recovered by the police very soon thereafter. Blood stained earth is material ext. III which was seized by the 1. 0. in presence of the seizure witnesses Jahar (P. W. 6) and Srikanta (P. W. 7 ). The evidence of 1. 0. shows that although blood was seized, the same never sent to the Forensic Expert for examination. Mr. Roy has argued and not without reasons that the alleged blood stained earth did not form any part of human blood, that the same was never collected from the P. O. and that is why no attempt was made to send it to the expert concerned. For this marked deficiency in the prosecution case, Mr. Roy has drawn the only reasonable conclusion that the victim was murdered elsewhere by some assailants other than his clients and that too not within the bastu in the manner as claimed by P. Ws. 1, 2, 3 and 5. ( 9 ) THE same conclusion is reached when we analyse the medical evidence on the record and find that the same is inconsistent with the oral evidence as adduced by the alleged eye-witnesses of the occurrence. Mr. Roy invites our attention to the evidence of P. H. C. Doctor (P. W. 4) where he said, there are 7 blades in lerics in this chowki and the blades are pointed. Mr. Roy invites our attention to the evidence of P. H. C. Doctor (P. W. 4) where he said, there are 7 blades in lerics in this chowki and the blades are pointed. The formation of the blades of as chowki are like small arrows. If injury is caused on soft part of the body by this chowki then I would expect penetrating wounds. I do not find any penetrating wounds on the injured. The members of the party accompanying the patient did not give me any history of assault on the patient There can be 7 or less than 7 penetrating wounds if a person is struck once with this chowkit1. Very similar is the tone of the post-mortem doctor (P. W. 10) when he deposed in the last paragraph of his cross-examination thus, there are 7 pointed blades in this chowki. If a person is hit with the enterior frontal portion of the chowki then one would expect that he would receive 7 penetrating wounds from the 7 pointed blades. It is very interesting to note here in this connection that according to this doctor one injury over the skull on dissection was found out and according to this doctor the same could be caused by chowki (ext. 1 ). No such injury however could be found on the scalp before dissection by the other doctor (P. W. 4 ). This part of the medical evidence also does not tally with the evidence as regards the account of assault as deposed to by the witnesses. For we have seen that according to the witnesses the chowki was thrust upon the face of the victim and not upon his bead. Therefore there is thus no doubt that the injuries on the person of the victim could not have happened in the way as alleged by Sridam and the rest of the witnesses. Mr. Roy has drawn our attention to the case of Hallu v. State of M. P. 2 and has argued that where the medical evidence appears to be contrary to the oral evidence adduced by the witnesses regarding the manner of strokes of assault, the prosecution case may be reasonably condemned as untrue. We shall have no good reason to differ from Mr. Roy on this aspect of the matter. We shall have no good reason to differ from Mr. Roy on this aspect of the matter. ( 10 ) FOR the reasons aforesaid, the entire prosecution case appears to us to be improbable and unreal. The learned Addi. Sessions Judge, in our opinion should not have accepted the evidence of the alleged eye-witnesses on their face value and ought not to have acted thereupon convicting the accused persons in the way as done by him. The accused persons in our judgment ought to have been acquitted of the offence under section 302/34 I. P. C. The appeal therefore, should stand allowed. ( 11 ) IN view of our findings as aforesaid the petition filed before us by Subals widow Srot. Joyend Debnath can no longer stand. The petition should be rejected inasmuch as we have found the two appellants not guilty of the offence and evidently they are not liable to pay any compensation whatsoever to her or to any body else on account of the death of Subal Debnath. ( 12 ) IN the result, the appeal is allowed. The judgment of conviction and sentence passed by the learned Addi. Sessions Judge, Midnapore is set aside. The appellants are acquitted of the offence with which they were charged by the learned Additional Sessions Judge. The appellants be released from custody and set at liberty forthwith. The petition preferred by Smt. Joyenti Debnath is rejected. Appeal allowed.