BASUDEVA PANIGRAHI, J. ( 1 ) THE conviction and sentence passed by the learned Additional Sessions Judge, 4th Court, Burdwan in S. T. No. 30 of 1987 Sessions Case No. 81 of 1987 convicting the appellant under Section 304 Part-I/34 of the Indian Penal Code and sentencing him to suffer RI for 10 years and to pay a fine of Rs. 1,000/ -. i/d RI for six months has been assailed in this appeal. ( 2 ) THE scenario of the prosecution story as revealed in course of that is as follows: That on 30th March. 1985 at about 4-30-5 P. M. while the informant P. W. 1 Shambhu Majumder, and his father Anil Majumder. P. W. 2 were in their grocery shop situated at cross road No. 15 within. Chittaranjan Township, someone reported them that the victim Madhusudan was being taken with his cycle from the crossing of road No. 37 and crossroad No. 16, 5/6 RPF personnel forming an unholy gang were found to have dragged the victim and on the way they were assaulting him. The de facto complainant Shambhu Majumder said his brother Madhusudan being taken towards the RPF barrack and he was also beaten on the way. Among those RPF personnel he could recognise only to the appellant Nagendra Prosad Singh, Indrajit Singh and B. B. Singh. Nagendra was also found beating Madhusudan (victim) within RPF barrack. He was also beaten by 5/7 RPF men, as 8; result of which he became unconscious and was lying in the verandah of the barrack. On repeated requests by P. Ws. 1 and 2 to allow Madhusudan to be taken from the RPF barrack, the RPF personnel paid a deaf ear. Therefore, P. W. 2 Anil Majumder finding no way out informed the incident over phone to the local Police Station. Chittaranjan Police Station following receipt of the information had immediately swung into action. ( 3 ) P. W. 12 Bejoy Kumar Sharma as he was then SI of Police after having learnt about the incident rushed to the RPF compound at 18-15 hrs on 30th March. 1985 and arranged to shift the injured Madhusudan to KG Hospital. He registered a case after returning to the Police Station as P. S. Case No. 3 dated 30th march. 1985 after collecting FIR from P. W. 1 Shambhu Majumder. 1985 and arranged to shift the injured Madhusudan to KG Hospital. He registered a case after returning to the Police Station as P. S. Case No. 3 dated 30th march. 1985 after collecting FIR from P. W. 1 Shambhu Majumder. In course of treatment in KG Hospital it has appeared that the injured Madhusudan Majumder succumbed to those injuries. P. W. 12 after completing the investigation placed the charge-sheet against the appellant as well as the two other accused namely, indrajit Singh and Brij Behari Singh under Section 302/34. I. P. C. ( 4 ) THE prosecution in order to sustain conviction against the appellant and other accused examined 14 witnesses, the defence, on the other hand examined 3 witnesses. ( 5 ) ON a thorough appraisal of the evidence on record the learned Additional Sessions Judge, Burdwan was, however, inclined to convict the appellant under Section 304. Part 1/34 I. P. C. whereas two other accused, namely. Indrajit Singh and Brij Behari Singh had been acquitted. ( 6 ) MR. Pandey learned Advocate appearing for the appellant has strongly, contended that in this case the prosecution has significantly failed to bring home charge to the accused inasmuch as the ocular evidence of the prosecution witnesses is highly interested therefore the same should be incredulous and. unbelievable. It has been further submitted that the investigation done by P. W. 12 is highly perfunctory and. therefore the learned Trial Court should have recorded a clean acquittal of the appellant. The learned Counsel appearing for the appellant that the Post-Mortem Report does not reveal the true picture before the Court from which an inference could be drawn as to how the victim had succumbed to those injuries highlighted it. T. I. Parade conducted by P. W. 14 had also suffered from the severe vice of inordinate delay for which no explanation has been offered by the prosecution. The incriminating materials alleged to have been found against the appellant had also not been put while on examination under Section 313. Cr. P. C. So that the appellant could have submitted probable cause about the death of the victim. ( 7 ) MR. Moitra the learned Advocate appearing for the State has supported the judgment and further submitted that the prosecution to the best of its ability had produced the legal factual arid also the scientific evidence to record an order of conviction. ( 7 ) MR. Moitra the learned Advocate appearing for the State has supported the judgment and further submitted that the prosecution to the best of its ability had produced the legal factual arid also the scientific evidence to record an order of conviction. P. Ws. 1 to 3 are most reliable, trustworthy and ocular witnesses and form their evidence inevitable conclusion should be drawn about the guilt of the accused. The deceased succumbed to the injuries on account of haematoma appearing on the occipital region of the head. There has been ample evidence to establish the fact that the appellant had caused injuries on the person of the victim so reasonable inference has to be drawn that he was the author of the crime. While sustaining a conviction under Section 34. I. P. C. common intention has to be gathered from the proved circumstances. There cannot be any direct evidence to establish the fact of common intention. Sometimes common intention can develop at the spur of the moment. Therefore, in this background the appellant should not depend upon any trivial inconsistency for reaping benefit of his acquittal. ( 8 ) THE prosecution in order to prove its case has mainly relied upon the ocular testimony of P. Ws. 1 to 3 P. W. 1 and P. W. 2 are the brother and father of the deceased. P. W. 3 is an independent witness, merely because P. Ws. 1 and 2 are closely related to the deceased, it cannot be inferred that they would foist a case against the appellant falsely. They being the close relation of the deceased, they shall not allow culprit go scot free. Therefore, their testimony should have to be intrinsically examined. If their evidence is otherwise trustworthy believable and reliable from which inescapable conclusion could be drawn about the guilt of the accused, then conviction can lie on the basis of such evidence. P. W. 1 in his evidence has deposed that on 30th March. 1985 at about 4-30/5 P. M. while he was in the shop some persons reported to him that his brother Madhusudan was being taken with his cycle and while he was being taken beaten by some RPF men. This evidence should not have been accepted by the Court below. 1985 at about 4-30/5 P. M. while he was in the shop some persons reported to him that his brother Madhusudan was being taken with his cycle and while he was being taken beaten by some RPF men. This evidence should not have been accepted by the Court below. The name of the person from whom such information has been derived has not been deposed nor such person has been examined. But, from his further evidence it has transpired that he went and saw from a short distance that his brother was being taken away. He entreated the RPF personnel to let his brother off, P. W. 1 said to have noticed the appellant assaulting his brother. Thereafter his brother was taken inside the RPF barrack where he was beaten by 5/7 RPF men. P. W. 1 does not speak that he had seen the appellant beating his brother inside the RPF campus. But, from the testimony it has appeared that some 5/7 RPF men assaulted Madhusudan as a result of which he fell down unconscious. His father along with Tapan Majumder were present at the spot. The FIR was submitted in the same night around 7 P. M. in KG Hospital. It is significant to note that in the FIR it has not been stated that the appellant had assaulted the victim while he was being taken towards the RPF barrack. Only allegation that has been made is that some RPF personnel had taken away Madhusudan Majumder towards the barrack. He only alleged among the persons present in the group of RPF personnel, he could recognise to the appellant and other two accused Indrajit Singh and B. B. Singh. But the story of assault was developed after the FIR was lodged in course of investigation. From his evidence it was gathered that P. W. 12, Investigating Officer examined him 2/3 days after the incident. Therefore, in such background the evidence of P. W. 1 cannot be accepted in toto. ( 9 ) ON a closer examination of the testimony of P. W. 2 it has transpired that he learnt on 30th March, 1985 that at about 4-30/5 P. M. some RPF personnel had taken away his son to RPF barrack and while, he was being taken, beaten by them. This also appears to be hearsay evidence since he did not disclose from whom he has heard this. This also appears to be hearsay evidence since he did not disclose from whom he has heard this. After hearing this he proceeded to RPF barrack and saw the appellant beating his son while 2/3 others had surrounded his son. On a comparison of the testimony of P. Ws. 1 and 2. P. W. 1 has not stated that the appellant was found beating the deceased. While P. W. 2 testified that he had seen the appellant beating his son. It is not understood as to why the name of the appellant was not disclosed while making such Diary at the police station, if the appellant was found actually beating deceased Madhusudan, T. I. Parade was conducted approximately 50 days after the incident and no reason has been ascribed by the prosecution as to delay in conducting the T. I. Parade. Even the learned Sessions Judge discarded the veracity of the witnesses- who claimed to have identified the appellant. In that backdrop we are also not inclined to place even a bit of reliance on the T. I. Parade report. He was examined 5/6 days- after the incident. The Investigating Officer has not disclosed the ground of delay rather, he has claimed to have recorded the statement of P. W. 2 within hours of the incident. Therefore in this background it becomes very much suspicious as to whose version is true. Since P. W. 2 is the father of the victim, we do not understand why he should make a falsehood that he was examined 5/6 days after the incident. Therefore, the late examination of the occurrence witness raises serious suspicion about the veracity of the prosecution case. P. W. 3 is supposed to be an independent witness. But, in this case before the incident he did not know the appellant Nagendra. He could only recognise after the T. I. Parade, which was conducted more than 50 days after the incident. He did not reveal immediately after the occurrence that he could identify the real assailants if they would be shown to him. His statement was not recorded in the hospital nor sometime thereafter about the occurrence. He claims to have heard that the victim was lifted along with a cycle by some RPF men and he was beaten there. This, he learnt around 5. 00 P. M. on 30th March, 1985. His statement was not recorded in the hospital nor sometime thereafter about the occurrence. He claims to have heard that the victim was lifted along with a cycle by some RPF men and he was beaten there. This, he learnt around 5. 00 P. M. on 30th March, 1985. After hearing this he claims to have proceeded to the spot. In that view of the matter we dont think that the assault would be continuing so long so that, it would be possible for P. W. 3 to witness the assault. P. W. 3 did not state before the Magistrate holding T. I. Parade that the person whom he identified was Nagendra. He did not have any personal knowledge about the circumstances. Therefore his evidence too does not inspire any credibility. The evidence of P. W. 4, P. W. 5 and P. W. 6 does not in any manner help the prosecution. P. W. 7 has proved only to have started a D. D. Case after he being informed about the unnatural death of Madhusudan. Why P. W. 7 started a D. D. Case even when there was already a case registered against the appellant and others. P. W. 9 was the Medical Officer attached to the Sub-Divisional Hospital. Asansol on 31st March 1985 on which day he claimed to have examined the dead-body of Madhusudan, which contained the following injuries: 1. Multiple bruise all over the body. 2. Lacerated wound right eye upper lid 1/2 x 1/2 x 1/4tt 3. Lacerated wound right maxila 1/2 x 1/2 x 1/4 Scalp-haematoma right temporal region and occipital region. General health-Average built. R. M. present. Vain-compressed by blood. Death in his opinion has due to head injury and ante-mortem in nature. ( 10 ) IT is strange to note that in such type of serious case the Medical Officer also has behaved very casually in conducting the post-mortem Examination. The size of scalp haematoma over right temporal region and occipital region had not been noted nor those injuries had been examined after dissection. The postmortem report has not been also filed nor marked as an Exhibit. The nature of injuries of serial Nos. 1 to 3 had not been noted nor the age. Injuries No. 2 and 3 are simple in nature. No dimension has been noted of the injury No. 1. The postmortem report has not been also filed nor marked as an Exhibit. The nature of injuries of serial Nos. 1 to 3 had not been noted nor the age. Injuries No. 2 and 3 are simple in nature. No dimension has been noted of the injury No. 1. Whether the injuries could cause death in ordinary course of nature of not has also not been stated by the P. W. 9. ( 11 ) IT is further quite disquietening to note that the injured was although admitted immediately after the incident around 6 P. M. in the Hospital, neither the patients history nor the bed-head ticket nor the treatment alleged to have been given to him have been produced or proved in Court. In such backdrop it is very difficult to rely upon the medical evidence to ascertain the cause of death. From the evidence of P. W. 11, it has appeared that he was acting as an Inspector. R. P. F. i. e. 30th March 1985. From the pacca road, outside the compound 2 cycles have been seized. Had any incident occurred inside the barrack such fact must have been noted in their Diary. But, it is strange to note that nothing was recorded in their Diary about the incident. No outsider could enter into the premises without the permission of the authority. He also does not support the prosecution story that any incident had taken place on 30th March. 1985. In such background we, therefore, cannot brush aside his evidence, which has a far reaching consequence while appreciating the evidence of the witnesses. It is not understood as to why P. Ws. 1 and 2 did not report about the incident to P. W. 11 when it had allegedly taken within the RPF barrack. ( 12 ) P. W. 12 was the Investigating Officer at the relevant time. It is not understood as to why he did not draw the sketch Map indicating the spot where the injured was lying. From his evidence it also does not disclose the distance between the place of incident and also the place where he was allegedly dragged. Although he claimed to have seized the injury report and bed-head ticket but why he failed in his duty to produce them before the Court is not understood. From his evidence it also does not disclose the distance between the place of incident and also the place where he was allegedly dragged. Although he claimed to have seized the injury report and bed-head ticket but why he failed in his duty to produce them before the Court is not understood. ( 13 ) NO specific overtake has been attributed against the appellant nor was he armed with any deadly weapon. There has been no direct evidence that the appellant assaulted on a specific part of the body of the deceased. The oral evidence also is not sufficient to attribute any overtake against this appellant much less common intention,. It is true that in so far as the common intention is concerned, there cannot be any possibility to secure direct or circumstantial evidence that there was a plan of meeting the mind of all assailants to commit the offence. It may be prearranged or on the spur of the moment but it must necessarily be before the commission of the crime. Such fact has to be inferred from the circumstantial evidence. In this case the prosecution has signally failed to prove about the common intention. Even we have analysed the evidence adduced by the prosecution to bring home the charge under Section 304, Par-I, I. P. C. but on a close scrutiny we did not satisfy ourselves that the prosecution was able to bring home any evidence worthwhile attributing any overt act against the appellant. ( 14 ) MR. Moitra, learned Advocate appearing for the State has relied upon the following decision in support of his submission: 1. In the case of Banwari Ram and Ors. v. State of U. P. 2. In the case of Rammi Rameshwar etc. v. State of M. P. 3. In the case of Ambika Prasad and Anr. v. State (Delhi Administration) and Rajinder Singh v. State (Delhi Administration ). 4. In the case of State of Haryana and Ors. v. Bhajanlal and Ors. 5. In the case of Sukhdev Singh v. State of Punjab. ( 15 ) BUT we found that in so far as the principle decided by the Apex Court there can be no quarrel, while applying the principle decided in the aforesaid cases, we found those are not applicable to the case at hand. v. Bhajanlal and Ors. 5. In the case of Sukhdev Singh v. State of Punjab. ( 15 ) BUT we found that in so far as the principle decided by the Apex Court there can be no quarrel, while applying the principle decided in the aforesaid cases, we found those are not applicable to the case at hand. ( 16 ) ACCORDINGLY, we disagreeing with the findings and observations of the learned Sessions Judge hereby acquit the accused of the charges. ( 17 ) IN the result, the appeal is allowed. ( 18 ) BAIL bond furnished by the appellant, is hereby cancelled. Malay Kumar Basu, J.- I agree. Appeal allowed.