Judgment R. N. Thakur, B. P. Griyaghey, JJ. 1. The appellant has been convicted under Sec.302 of the Indian Penal Code (shortly to be referred as the Code)and has bee sentenced to undergo rigorous imprisonment for life. This is a very unfortunate case. The deceased and the appellant were full borthers. 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 P. W.7, Sitwa bagwe came to his house to take barley seeds to be sown in the field. P. W.5, wife of the deceased Mahendra Mandal was in her house. When P. W.7, Sitwa was taking barley seeds, Agnu Mandal came and assaulted him, due to which sitwa P. W.7, sustained some injury. He (P. W.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 house. When the deceased came to his house, this appellant along with his father Agnu Mundal 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 deceased in the Angan with their. veapons. His wife (P. W.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 fell down. Thereafter Agnu mandal get 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 fell down. Thereafter Agnu mandal get 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. P. W.5 was also assaulted by this appellant with the sword. P. W.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 some time she regained her senses. Villagers assembled there. She narrated about the occurrence to the villagers. 3. The brother of P. W.5 Ramlal (P. W.11) had come to the house of the deceased one day prior. The mother of P. W.5 was also in the house. It is said that when P. W.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. P. W.6, who is mother of P. W.5 also tried to save her son-in-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. P. W.11 along with the village Chaukidar went to the police station and gave information about the occurrence which led to institution of the criminal case against this appellant as well as his father. The officer ineharge 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 withesses his further case appears to be that P. W.5 had illicit relationship with p. W.6 and when it was detected by her husband, he (deceased) tried to assault p. W.6, in which the P. W.7 killed the deceased. However, no defence witness was examined on his behalf. 6. Appellant denied the allegation. From the cross-examination of the withesses his further case appears to be that P. W.5 had illicit relationship with p. W.6 and when it was detected by her husband, he (deceased) tried to assault p. W.6, in which the P. W.7 killed the deceased. However, no defence 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 P. Ws.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 P. W.5 is the solitary witness, who speaks of the entire occurrence. P. Ws.6, 7 and 4 did not see the actual occurrence of assault. P. Ws.1, 9 and 10 are the Medical Officers. Out of them P. W.1 had conducted the post mortem examination of the deceased and he simply gave a first aid to P. W.5. P. W.9 had examined and treated P. W.5 and P. W.10 conducted post mortem examination on the dead-body of the baby, who was killed in the womb itself. P. Ws.2 and 3 have been tendered and P. W.13 is the formal witnesses, who has proved the case diary. P. Ws.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. P. W.5 also received several injuries which will be apparent from the evidence of P. W.9. 9. Now, let us first consider the medical evidence. P. W.1 was Medical officer attached to the Sub-divisional Hospital, Godda on 26-11-76 and on the same day at about 10.35 p. m. he examined P. W.5 and gave first aid. As her condition appeared to be serious, she was forwarded to Bhagalpur hospital for treament. 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"x " X bone deep obliquely on right side of forehead. II. As her condition appeared to be serious, she was forwarded to Bhagalpur hospital for treament. 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"x " X bone deep obliquely on right side of forehead. II. Incised wound 3" 1" X bone deep on right arm below elbow. III. Incised wound 2"x1"x bone deep obliquely on right arm above elbow. IV. Incised wound 1"x1"x bone deep on left wrist. V. Incised wound 1"x 1"x muscle deep on left arm. VI. Incised wound 8"x2" on upper part of neck cutting trachea muscle, nerves and vessels. VII. Penetrating wound 1"x"x1" deep on right arm below deltoid muscle. VIII. Incised wound 1" X 1" bone deep on left thigh knee. 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 haemorrhage 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 caused by head portion of sword. The post mortem report is Exhibit 1. He did not remember when P. W.5 was brought to his hospital and whether she was consious or unconscious. P. W.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 P. W.5 and found the following injuries on her person :- (i) Two incised and punctured wounds on the left side of abdomen of the size of 1" "x penetrating into abdomen with omentum coming out and 1"xx respectively. (ii) One punctured wound on the right side of abdomen i. e. hyopastrium 3/2"x" Xpenetrating into abdomen. (iii) Two incised wounds on right hand of the size of 1" x" X " and 3/2 X3/4"x"x 9/6" respectively. (iv) One incised wound on right forearm 3/4"x"x1/4". (v) One incised wound in the front of head 2" X 1/3" bone deep. (vi) One punctured wound on the right side of abdomen 2"x1"x penetrating into abdomen with omentum coming out. (vii) One incised wound on the back limbosacran region 3"x1x"- (viii) One incised wound in front of neck on the right side x1/6x /4". (v) One incised wound in the front of head 2" X 1/3" bone deep. (vi) One punctured wound on the right side of abdomen 2"x1"x penetrating into abdomen with omentum coming out. (vii) One incised wound on the back limbosacran region 3"x1x"- (viii) One incised wound in front of neck on the right side x1/6x /4". (ix) One incised wound on the back of neck on the right side "x1/6x 1/6". All these iujuries were caused by sharp cutting weapon viz. , sword. Injury nos.2 and 6 were found to be grievous and rests were simple in nature. All injuries were aged within 24 to 48 hours. The victim lady (P. W.5) was pregnant at full term. After laboratoring it was found that there were two perforations of the size of " X 1" each on upper part of uterus-factus was found dead. There was also one perforation "x " over anterior wall of cecum, 11 Therefore, from the the aforesaid medical evidence as well as from other evidence it is well proved that the deceased Mahendra Mandal died at injuries which he had received. It is also quite proved that P. W.5 had received injuries with result that her baby in the womb also received injuries, which resulted in the death of the baby. 12. Now main question remains to be considered is whether the deceased and P. W.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. It is further said that during this period of one year some time 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 P. W.5. It is further said that during this period of one year some time 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 P. W.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 Punchnama was prepared according to her own evidence, it remained with the appellant and as such, it has not been produced in the court. It it also somewhat surprising as to why copy of the Panchnama was not given to the deceased when partition was effected by way of Panchayati. That is all the evidence on the point of motive. On the day of occurrence, as stated above, when P. W.7 came to take the seeds of barley he was assaulted by Agnu. No reason has been assigned as to why P. W.7 was assaulted on that date and at that time P. W.5 has herself admitted in her cross-examination that before sitwa (P. W.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 onthe 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. 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 on P. W.7 and the deceassd, it is shrouded in mystery as yet. 13. How the occurrence started, the prosecution evidence is not consistant on this point also. Therefore, as to what was the reason for the assault on P. W.7 and the deceassd, it is shrouded in mystery as yet. 13. How the occurrence started, the prosecution evidence is not consistant on this point also. According to the evidence of P. W.5 the deceased had gone to his field in the morning of the day of occurrence to get his land ploughed. Her mother P. W.6, her brother P. W.7 and her son were in the house when p. W.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. P. W.6 the mother of P. W.5 says that in the morning of the occurrence her son-in-law (the deceased) had gone to his field with plough and bullocks. P. W.7 came to their house to take barley seeds. When p. W.7 had weighed the barley seeds Agnu Mandal came and assaulted him (P. W.7) and thereafter he fled away. P. W.7 is the servant himself. In examin-ation-in-chief he says that in the morning of the day of occurrence he had gone to plough the field of the deceased, which situated in Raga Mouza. The deceased was also there. From there he came to bring barley seeds. As 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 barley seeds fell down. Then he volunteered to say that he was assaulted in the room itself and there is no verandah in the front of the room in which he was assaulted and then he went to the field where Mahendra was ploughing his field. According to him, the son of the deceased P. W.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 (P. W.3)did not accompany him. Then it is said that P. W.3 brought the plough from the field. On the day when P. W.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. On the day when P. W.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 P. W.3 also went to that field where his father was ploughing, specially when it situated in another village. According to the evidence of P. W.5 when the deceased had gone to plough his field P. W.3 was in the house and remained there with his nani and Mama till the servant P. W.7 came to take barley seeds. 14. Even on the point that P. W.7 had come to take barley seeds, the prosecution evidence is not consistant. P. W.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 P. W.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 P. W.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 Gali or nearabout that. Of course, he has tried to explain by volunteering himself that the room and Gali is connected having no verandah 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 P. W.7 had gone to take barley seeds and when he was taking away the barley seeds he was assaulted. According to the prosecution case P. W.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 nearabout the house of the deceased. According to the prosecution case P. W.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 nearabout the house of the deceased. P. W.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 that type of injury he had received. In this very connection, one statement given by P W.7 himself is very relevant to be considered. In cross-examination P. W.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 P. W.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 (P W.7) did not appear before the investigating Officer for his evidence till 10 to 12 days after the occurrence. 15. If the prosecution case, as placed before the Court is judged in this back-ground, the story, as stated by P. W.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. Why the doctor, who examined him has not been examined As stated above the reason for his presence, as given in court is not consistant with the reason given earlier. 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 consistant 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. 16. Apart from all these, according to defence, the occurrence took place in the night itself when the deceased detected P. W.7 along with P. W.5 in the house he lost temper and started assaulting P. W.5 and P. W.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 P. W.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, P. W.7 has admitted himself that Agnu had suspicion that he had illicit connection with p. W.5 and this admission along with the conduct of P. W.7 that he did not appear before the Investigating Officer for ten to twelve days is a great circumstance which lends support to defence version. No evidence has been led to prove injury on his person. Why P. W.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 P. W.7 not indicate some thing else The post mortem report 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 P. W.7 not indicate some thing else The post mortem report 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 P. W.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 .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 get 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. 17. P. W.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 P. W.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 lor 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 P. W.2 as well as by Ext.1 which shows that undigested food was found in the stomach. Therefore, it is very difficult to say that P. Ws.8 and 12 have given false evidence on this point. 18. Therefore, it is very difficult to say that P. Ws.8 and 12 have given false evidence on this point. 18. 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 ghastly murder was committed by the father of his own son and pregnant Daughter-in-law was so seriously assaulted. P. W.4 has stated that Sibu Sah is the Bhagina of his father. Chinti is the daughter of said Sibu Sah and P. W.11 if the full brother of a foresaid Chinti. Therefore, p. W.4 is admittedly a relation of P. W, 11 and P. W.5. Other villagers P. W.8 and 12, as stated above, did not support the prosecution case. The Mukhia or the Surpanch has not been examined to say anything. 19. Occurrence took place on 26-11-1976 about 7.30 a. m. post mortem was conducted on 27-11-1976 at 11.45 a. m. and time elapsed since death within 36 hours. P. W.9 examined P. W, 5 on 27-11-1976 at 5.20 a. m. and found injuries on her person aged about 24 to 48 hours. P. W.10. held post mortem examination on the dead foetus 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 defence that occurrence took place in the night. 20. 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 witiness 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. 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. 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 the extent of killing him. As stated above, at the first instance, his servant P. W.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 P. W.7 on that date It is shrouded in mystry. 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. 21. There is one more peculiar aspect of the case. From the evidence and from the nature of the injury found on P. W.5 it is clear that the assaillant, whover might be had the intenion 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 (P. W.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. 22. 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. Not even a slap was given to him. 22. 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. 23. The presence of P. W.11 also is not above board. According to the evidence of P. W.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. P. W.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 P. W.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-Ncma in absence of Nani specially when Nani is at their house. 24. For the reasons stated abve, 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. Appeal allowed.