N. C. SIL, J. ( 1 ) THIS appeal was directed against the judgment and order of conviction dated 22-8-1989 passed by Shri S. K. Das, the learned Additional Sessions Judge, First Court, Midnapore in connection with Sessions Trial Case No. XIV of November, 1986. ( 2 ) IT appears from the judgment passed by the learned Additional Sessions Judge that as many as 42 accused persons faced trial of different charges before the learned trial Court and out of those 42 accused persons he found accused-Bhagwat Ch. Gayen and Ranu alias Ranendra Kr. Roy guilty of the offence under S. 302, I. P. C. and sentenced them to imprisonment for life. The learned Judge also found the other four accused persons namely Bharat Jha, Ranjan Mondal, Basudeb Midaya and Durgapada Mondal guilty of the offence under Ss. 325/149, I. P. C. and sentenced them to undergo rigorous imprisonment for five years each. The learned Judge was pleased to acquit all other accused persons. ( 3 ) THE prosecution case in brief is that in the morning at about 6 a. m. /7. 30 a. m. of 19-1-1984 about 900 miscreants armed with guns, bombs, pistols, arrows, bows, strikcs, tangis, ballams and other lethal weapons under the leadership of Bhagwat Chn. Gayen, Ranendra Kumar Roy alias Ranu, Hitendra Nath Prodhan entered the village of the informant and started looting and assaulting the prosecution parties including looting the house of the informant. The informant, Lakshmi Kanta Prodhan tried to escape lent the accused-Anil Das, Durgapada Mal and Basudeb Midaya encircled him and started assaulting him. At that time, Ranendra Kr. and Ranu dragged Kanailal Jana holding one pistol in one hand there. Thereafter Bhagawat Gayen, Niranjan Sukai, Hitendra Nath Prodhan and Phanindra Nath Bera started assaulting Kanailal Jana and Durgapada told to finish him. At this Bhagawat hit with all force on the head of Kanailal with a tangi and Kanailal fell down on the ground and subsequently died. The informant tried to escape when Ranu fired from his pistol aiming at him and Durgapada hurled a bomb. The informant sustained bomb injury and fell down on the ground. At that time Animesh Prodhan, the brother of the informant rushed there but Anil Das and Ranjan Mondal started assaulting Animesh mercilessly. Thereafter the mob ransacked the house of the informant under the leadership of Jatindra Nath Bera and Basudeb Midaya. The informant sustained bomb injury and fell down on the ground. At that time Animesh Prodhan, the brother of the informant rushed there but Anil Das and Ranjan Mondal started assaulting Animesh mercilessly. Thereafter the mob ransacked the house of the informant under the leadership of Jatindra Nath Bera and Basudeb Midaya. About 200 strong nob broke the door and window of the cereal shop of the informant and looted away goods worth about Rs. 35,000/ -. Thereafter the mob entered into the room of the Hasking machine and took away machine and other parts of the machine. It was also learnt by the informant that mob also ransacked the house of Jitendra Nath Prodhan, Profulla Kumar Prodhan, Paresh Chandra Bisai, Netai Bisai, Bhuban Mohan Bisai and Raghunath Bisai and looted the valuable articles from their houses. The members of the mob also assaulted Jitendra, Binode, Kartick, Badal and others. ( 4 ) AFTER investigation the police submitted charge-sheet against 44 accused persons. The learned Judge appears to have framed as many as 8 charges against all those 42 accused persons. If further appears on scrutiny that out of those 8 charges 6 charges were framed under S. 325/149, I. P. C. for assaulting six different persons like (1) Lakshmi Kanta Prodhan, (2) Animesh Prodhan, (3) Jitendranath Prodhan, (4) Binode Sasmal, (5) Kartick Barman, (6) Badal Kar. It also appears that charge under S. 148, I. P. C. was framed against all the accused persons. Charge under S. 302 read with S. 149 of the Indian Penal Code was framed against all the accused persons for causing death of Kanailal Jana. ( 5 ) NOW, it appears from the judgment of the learned Judge that he found Bharat Jana, Ranjan Mondal, Basudeb Midaya and Durgapada Mondal guilty for committing offence under S. 325/149, I. P. C. and sentenced each of them to undergo rigorous imprisonment for a term of five years. It is also stated by the learned Judge that no separate sentence was given to those accused persons for committing offence under S. 325/149, I. P. C. although in the body of the judgment there is nothing that those accused persons were found guilty for the said offence. It is also stated by the learned Judge that no separate sentence was given to those accused persons for committing offence under S. 325/149, I. P. C. although in the body of the judgment there is nothing that those accused persons were found guilty for the said offence. The learned Judge found all accused persons guilty of the offence under S. 148, I. P. C. , those four accused persons and Bhagawat Chandra Gayen and Ranu guilty of the offence under S. 148, I. P. C. but no separate sentence was passed therefor. The learned Judge found Bhagawat Chandra Gayan and Ranu alias Ranendra Nath Roy (here the middle name 'kumar' changed to 'nath') guilty for committing offence under S. 302, I. P. C. and sentenced them to rigorous imprisonment for life. ( 6 ) IT appears from the record that as many as 20 witnesses were produced by the prosecution out of which P. Ws. 4, 5, 6 were tendered. P. W. 1 Lakshmi Kanta Prodhan is the informant and claimed himself to be the eye witness of the occurrence. Besides, P. Ws. 1, 2, 3, 7, 8, 10, 11 and 14 also appeared to be the eye-witnesses of the occurrence. Record further goes to show that the F. I. R. was lodged on the self-same day at about 8. 15 hours. ( 7 ) THE informant, Lakshmi Kanta Prodhan as P. W. 1 stated in his evidence that on the date of occurrence at about 6 a. m. a strong mob of 800/900 persons raided their houses being armed with bows and arrows, lathies, guns, bhali etc. and out of those persons he had identified 42 accused persons who faced trial before the trial Court. He further stated that accused-Bhagawat was armed with tangi and Durgapada had a bomb in his hand. P. W. 1 claims that he was hit with a bomb hurled by Durgapada while the other accused like Anil Das, Ranjan Mondal, Bharat Jana and Basudeb Middya slapped and kicked him. It is again in his evidence that accused-Ranu dragged Kanailal on the road and at that time had a pistol in his hand while the other accused persons like Hiten, Phani, Bharat (appellant No. 3) and Niranjan assaulted Kanailal with fists and blows. It is again in his evidence that accused-Ranu dragged Kanailal on the road and at that time had a pistol in his hand while the other accused persons like Hiten, Phani, Bharat (appellant No. 3) and Niranjan assaulted Kanailal with fists and blows. Durgapada gave out that Kanailal was the root of all evils and he should be finished and at this the accused-Bhagwat who had a tangi in his hand hit Kanai on his head with the said tangi and Kanai died. It is also in his evidence that while he was trying to escape the other accused-Ranu fired at him from his pistol but it missed the target. The bomb hurled by Durgapada aiming at the P. W. 1 missed the target and the P. W. 1 fell down on the ground but sustained splinters injury. The P. W. 1 further stated that Animesh came to his rescue but Animesh was assaulted by the accused-Ranjan (appellant No. 4) and Anil with fists and blows. P. W. 1 further stated that the miscreants thereafter took away his husking machine, pump set and looted the grocery articles, paddy, rice and other household articles from the house. The P. W. 1 further stated that in the occurrence Badal Kar, Prafulla Bisui, Animesh Prodhan, Jitendra Prodhan and Binode Sasmal and also another sustained injuries. He has proved his signature on the F. I. R. (Exhibit 1 ). P. W. 1 admitted in his cross-examination that before his attending physician he did not state that the occurrence took place at 9. 30 a. m. nor did he state the name of Anadi Mondal, Rabin Mondal and others as his assailants. It is also admitted by him that except bomb he did not mention any other weapons used in the occurrence. It is admitted by the P. W. 1 that the occurrence is the outcome of the political rivalry. He further stated, "the writing of F. I. R. was started 9/9. 30 a. m. It took about 90 minutes to complete the writing of the F. I. R. " suggestion was put to the P. W. 1 in his cross-examination to the fact that Bhagawat Gayen was assaulted mercilessly and he was left there with grievous hurt which was of course denied by him. 30 a. m. It took about 90 minutes to complete the writing of the F. I. R. " suggestion was put to the P. W. 1 in his cross-examination to the fact that Bhagawat Gayen was assaulted mercilessly and he was left there with grievous hurt which was of course denied by him. To a question put by the defence this P. W. 1 stated, "i did not see the Bhagawat Gayen to assault one Kanai Jana in injured condition. " ( 8 ) RAGHUNATH Bisai is the P. W. 2. He also stated about the incident that Lakshmi Prodhan was being dragged on the road by Anil Das, Durgapada Mal, Ranjan Mandal, Basudeb Middya and Bharat Jana and at that time those miscreants were also slapping and giving blows to him. The P. W. 2 also found Ranendra to drag out Kanai on the road with a pistol in his hand and the other miscreants like Bhagawat Gayen, Phani Bhusan Bera were giving fists and blows to Kanai. Kanai was taken to the place where Lakshmi Prodhan was detained. At that time Durgapada told that Kanai was the root of all evils when Bhagawat hit Kanai with a tangi on his head. The P. W. 2 also stated that thereafter the miscreants started looting the houses of Lakshmi, Jitendra Prodhan, Prafulla Prodhan and others. The miscreants also looted the articles from the house of the P. W. 2. The P. W. 2 further stated that police seized some household articles from the houses of Khitendra Prodhan, Bhagawat Gayen, Kali Maity. P. W. 2 is the witness of the seizure list. The P. W. 2 further stated that he is a follower of the Congress party while the accused persons belonged to C. P. I. (M ). It is also in his evidence that the accused persons had grudged against the prosecution party for political rivalry. In his cross-examination the P. W. 2 stated that the batch which assaulted Lakshmi did not take part in assaulting Kanai and Kanai was given a single blow with tangi. The statements of the P. W. 2 before the I. O. recorded under S. 161 of the Code of Criminal Procedure were confronted in his cross-examination by the defence and thereafter the I. O. was examined for the purpose of taking confirmation as regards those statements. The statements of the P. W. 2 before the I. O. recorded under S. 161 of the Code of Criminal Procedure were confronted in his cross-examination by the defence and thereafter the I. O. was examined for the purpose of taking confirmation as regards those statements. Thus, it appears from the evidence of the I. O. who is the P. W. 20 in the instant case that the P. W. 2 did not state that Lakshmi was being assaulted by Anil Das, Durgapada Mal, Ranjan Mandal and Basudeb Middya with fists and blows nor did he state that the accused-Ranendra Roy dragged Kanai to the road and at that time he had one pistol in his hand. The P. W. 2 did also not state that Bhagbat assaulted Kanai with a tangi the P. W. 20 further stated. ( 9 ) PARESH Chandra is the P. W. 3. He stated in his evidence that on the date of occurrence he found Durga Mal, Bharat Jana, Anil Das dragged Lakshmi Prodhan on the road and Ranu dragged Kanai when Durga gave out that Kanai was the root of all evils and so he should be finished. At this Bhagbat hit Kanai on his head with a tangi. The P. W. 3 further stated that Drugapada hurled bomb aiming at the fleeing Lakshmi and he sustained injury by the splinters of bomb. He had also deposed as regards the looting of the articles from the houses of the prosecution party and the recovery of those articles from the houses of the accused persons. Thus, he stated that his stolen cycle was recovered from the house of the accused-Bhagbat. He is also the witness of the seizure list. In his cross-examination the P. W. 3 stated that the incident is the outcome of political rivalry. The statement of this witness recorded under S. 161, Cr. P. C. by the I. O. has been confronted in his cross-examination and confirmation was taken from the I. O. Thus, the I. O. as P. W. 20 stated in his evidence that the P. W. 3 did not state to him that the accused-Durgapada, Bharat and Anil dragged Lakshmi from his house and assaulted him nor did he stated that Kanai was dragged by Ranu and Durgapada gave out that Kanai is the main culprit and so he should be finished. The P. W. 3 did also not state to the I. O. specifically that Bhagbat hit Kanai with tangi or that Durga hurled a bomb aiming at fleeing Lakshmi. ( 10 ) P. WS. 4, 5 and 6 were all tendered by the prosecution and declined to be cross-examined by the defence. P. W. 13 and P. W. 15, a Constable are the formal witnesses and they were declined to be cross-examined by the defence. ( 11 ) ANIMESH Prodhan is the P. W. 7. He had also narrated the incident and stated in his evidence that he found Anil, Durga, Basudeb to drag his brother Lakshmi (P. W. 1) on the road and Ranu to drag Kanai with a pistol in his hand. He also saw Bhagbat, Hitendra, Niranjan were slapping and giving blows to Kanai. The P. W. 7 further stated that Durga gave out that Kanai was the leader and at this Bhagbat hit Kanai on his head with a tangi for which Kanai instantaneously fell down on the ground and died. The P. W. 7 further stated that his brother Lakshmi tried to flee away but Durga hurled bomb aiming at him for which the P. W. 1 sustained splinter injury. The P. W. 7 further stated that Ranu fired from his pistol aiming at the P. W. 1 but it missed the target. The P. W. 7 further claimed that he was assaulted by Abnil Das and Ranjan Mandal with lathis when Bharat threw a bomb from a distance and the P. W. 7 sustained splinter injury. P. W. 7 admitted in his cross-examination, "to the medical officer I did not say that I was assaulted by one Faijuddin Md. and others at about 9. 30 a. m. in the morning on 19-1-1984. " Medical Officer is the P. W. 18 and he stated in his evidence that the P. W. 7 stated to him that he was assaulted by Faijuddin Md. , Bharat Jana and others. The P. W. 7 also stated that he did not find any injury in the persons of Bhagbat. ( 12 ) JITENDRA Nath Prodhan is the P. W. 8. He also echoed the evidence of the other witnesses and only added further that Bhagbat hit Kanai with the blunt side of the tangi. , Bharat Jana and others. The P. W. 7 also stated that he did not find any injury in the persons of Bhagbat. ( 12 ) JITENDRA Nath Prodhan is the P. W. 8. He also echoed the evidence of the other witnesses and only added further that Bhagbat hit Kanai with the blunt side of the tangi. The P. W. 8 also stated that the occurrence lasted from 6 a. m. to 7 a. m. and no occurrence did take place at 9. 30 a. m. The P. W. 8 also stated that Durgapada assaulted him with lathi on his left hand and Basudeb with a 'katari' (a sharp cutting instrument) but in his cross-examination he admitted, "before the Doctor I did not stated I was assaulted by Anadi Mondal at about 9. 30 a. m. of that day. " And P. W. 18, the attending physician stated in his evidence that under the column of history of assault it was stated that the assailants were Anadi Monal, Basudeb Middya and the time of occurrence was 9. 30 a. m. The P. W. 8 also did not find any mark of injury on the person of Bhagbat. ( 13 ) GOKUL Ghosh is the P. W. 9. He was tendered by the prosecution. In his cross-examination by the defence he stated that Anadi initiated a case against him and others on the allegation that they raided and looted the shop at 9. 30 a. m. on 19-1-1984 and in that case Nisikanta Prodhan, Prafulla Maity, Lakshmi Prodhan, Bhanu Das and Prafulla himself were the accused. ( 14 ) PRAFULLA is the P. W. 10. He also supported the evidence of the other witnesses and stated that Ranu Roy, Durgapada, Bhagbat and Basudeb forcibly entered into the house of Lakshmi. Lakshmi tried to flee away but he was caught by Bharat, Anil, Durgapada, Basudeb and while he was being dragged towards the road he was assaulted by those persons. P. W. 10 also found Ranu to drag Kanai to the place where Lakshmi was detained and at that time Ranu had a pistol in his hand Kanai was assaulted by Bhagbat and Phani by fists and blows. Durgapada ordered to kill Kanai and Bhagbat hit on the head of Kanai with a tangi for which Kanai fell down and died. Durgapada ordered to kill Kanai and Bhagbat hit on the head of Kanai with a tangi for which Kanai fell down and died. Durgapada hurled a bomb aiming at Lakshmi and Lakshmi sustained injury by a splinter of the bomb. The P. W. 10 further stated that Animesh came to the rescue of Lakshmi but he was assaulted by Anil and Bharat with lathis and subsequently Bharat hurled a bomb and Animesh sustained splinter injury. P. W. 10 also stated that thereafter the miscreants started looting the houses of the prosecution party and took away the valuables. The statement of the P. W. 10 in his cross-examination was confronted by the defence. But to our utter dismay there appears nothing from the evidence of the I. O. , P. W. 20 that any confirmation was taken from him as regards the statement of the P. W. 10. ( 15 ) BINODE Behari Sasmal is the P. W. 11. He stated in his evidence that Kanai was killed by Bhagbat with the back side of an axe and the P. W. 11 himself was assaulted by Durgapada, Basudeb in his lathis on his legs for which his right leg was fractured. The house of the P. W. 11 was also looted by the miscreants. The P. W. 11 was medically examined first at Patashpur and thereafter shifted to Contai S. D. hospital. He was in the hospital for about 17/18 days. It is admitted by him that he did not mention the names of the assailants to the doctor of Patashipur as he was not asked about it. In his cross-examination the P. W. 11 stated that after the occurrence he had no occasion to meet the police officer. A suggestion was put in his cross-examination to the P. W. 11 to the effect that the shop of the accused Anadi was looted elsewhere and on that issue the prosecution party had confrontation with the accused persons for which the P. W. 11 was evading police as he was himself an accused in that case which was, of course, denied by him. ( 16 ) AMALENDU Bikash Bag is the P. W. 12. He is not the eye-witness of the occurrence. He is the scribe of the F. I. R. He put the F. I. R. (Ext. 1/1 ). ( 16 ) AMALENDU Bikash Bag is the P. W. 12. He is not the eye-witness of the occurrence. He is the scribe of the F. I. R. He put the F. I. R. (Ext. 1/1 ). In his cross-examination he stated that he was not examined by the police. ( 17 ) BADAL Chandra Kar is the P. W. 14. It appears from his evidence that he did not see the victims to be assaulted by the accused persons, but he saw a mob of 700/800 present at the place of occurrence and amongst. The mob he identified the accused persons on the dock. The P. W. 14 of course stated that he was hit by Niranjan Sukai with lathi on the road and he was surrounded by the accused persons like Atul Jana, Amulya Jana, Bhagbat Gayen Hitendra Prodhan, Anil Das and others. He also stated that he was assaulted by Subol Giri, Makhan Maity on his head. The P. W. 14 further stated as regards the looting of houses of the prosecution party. The P. W. 14 stated the names of the assailants to his attending physician in the hospital. In his cross-examination P. W. 14 stated that he was assaulted at about 6. 30 a. m. in the morning and not at 10. 30 a. m. He is also specific in his cross-examination that nobody pelted stone at him. In his cross-examination he further stated that he did not state the names of Santosh Giri, Srikanta Giri and others holding bombs and to have pelted stones at him at about 10. 30 a. m. But it appears from the evidence of the P. W. 18 that the P. W. 14 stated the names of his assailants as Madan Maity, Subol Maitry and Srikanta Giri to have assaulted him at about 10. 30 a. m. ( 18 ) P. W. 16, a police officer is a formal witness who held inquest over the dead body of Kanai. The P. W. 16 was declined to be cross-examined by the defence. The P. W. 17 is a medical officer who held post-mortem examination over the corpse of Kanai and found the following injuries: (1) A bleeding wound on the top of the scalp measuring 8" x 6". (2) Abrasion on the left hand. (3) Abrasion on the left knee. The P. W. 16 was declined to be cross-examined by the defence. The P. W. 17 is a medical officer who held post-mortem examination over the corpse of Kanai and found the following injuries: (1) A bleeding wound on the top of the scalp measuring 8" x 6". (2) Abrasion on the left hand. (3) Abrasion on the left knee. The P. W. 17 further stated that the skull bone of the victim was broken into pieces and driven inside the deep of the brain and it was compound comminutted fracture of the skull. The P. W. 17 further stated, "in my opinion, death was due to severe head injury which was ante mortem and homicidal in nature. It was caused by any blunt heavy weapon as per example a blunt side of a tangi. The abrasions on the limbs as detected by me were possible if the victim was dragged. " The P. W. 17 also examined Lakshmi Prodhan (P. W. 1) who was admitted in the hospital with bomb burst injury on different parts of his body with multiple splintered wound. The P. W. 17 also examined one Binode Behari Sasmal who was also admitted to the hospital with the following injuries: (i) Compound fracture of the right tibia, (ii) multiple small injury on the body. Neither of the injuries according to him were grievous. In his cross-examination the P. W. 17 stated the head injury of Kanai was on the top of the skull. The P. W. 17 denied a suggestion and stated, "i do not think that the injury as noticed on the top of the skull is possible if a standard size brick is thrown with force on the head. " The P. W. 17 further stated such injury is possible if the victim is hit with some heavy hammer. He also stated that the back side of a tangi is of round shape, although tangis are of various kinds and invariably there are nobs in the tangis. ( 19 ) P. W. 19 is a police officer. He made some part investigation of the case and finally submitted the charge-sheet. He was declined to be cross-examined by the defence. ( 20 ) MR. ( 19 ) P. W. 19 is a police officer. He made some part investigation of the case and finally submitted the charge-sheet. He was declined to be cross-examined by the defence. ( 20 ) MR. Y. Z. Dastoor, learned counsel appearing on behalf of the appellants has drawn our attention to the fact that the occurrence took place on 19-1-84 at about6/7 a. m. while the F. I. R. was lodged at 8. 15 hours on the self-same day but the same was sent to the Court on 21-1-84. Mr. Dastoor has also drawn our attention to the evidence of the P. W. 1 who stated that the writing of the F. I. R. was started 9/9. 30 a. m. and it took about 90 minutes to complete the same. From all this Mr. Dastoor has argued that the F. I. R. was prepared long after the occurrence. It appears from the record that the police station is at a distance of about 14 kilometres from the place of occurrence and the date and hour of reporting the incident to the police station was shown as 19-1-84 at 8. 15 hours. The F. I. R. was placed before the learned SDJM on 21-1-84. In this connection. Mr. Dastoor has referred to the ratio decided in the case of Balaka Singh v. State of Punjab, AIR 1975 SC 1962 (1965) : (1975 Cri LJ 1734 ). In that case F. I. R. was lodged after the inquest report was prepared. In the said case the names of 4 accused persons were subsequently incorporated in the F. I. R. whose names did not figure in the body of the inquest report and thus the Apex Court held that the entire prosecution case becomes extremely doubtful. Mr. Dastoor has also referred to the ratio decided in the case of Ishwar Singh v. State of U. P. , 1976 Cri LJ 1883 : AIR 1976 SC 2423 in which it was, inter alia, held that the extraordinary delay in sending the F. I. R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In the said case the F. I. R. was lodged on 14-2-1973 and the same was sent to the Court on the next day i. e. on 15-2-1973. The time of despatch was not stated but the same was received by the learned Magistrate on the morning of 16-2-1973. The Court of the learned Magistrate was nearby and thus the Apex Court held that it was difficult to understand why the report was sent to the Registrar about two days after its stated hour of receipt at the police station. ( 21 ) IN the instant case the police station is at a distance of 14 kilometres from the place of occurrence and there is nothing as regards the distance of the Court from the police station. The occurrence suggests that there was mutual assault and at least one person from the prosecution parties were injured. The prosecution case also suggests that there was looting in the house of many persons and there was assemblance of as many as 800/900 strong mob to participate in the occurrence of looting and assaulted. The fact of the case further suggests that the occurrence is the outcome of the political rivalry. That being the position the time taken in writing the complaint which was subsequently treated as F. I. R. does not invite any absurdity and this is what is the reason as to why the case laws cited by Mr. Dastoor have no application in the facts and circumstances of the instant case. ( 22 ) MR. Dastoor has then argued before us that in the instant case there is no seizure of the bloodstained earth from the place of occurrence and in this connection has referred to the ratio decided in the case of Lakshmi Singh v. State of Bihar, 1976 Cri LJ 1736 : AIR 1976 SC 2263 in which it was, inter alia, held that in almost all criminal cases, the bloodstained earth found from the place of occurrence is invariably sent to the Chemical Examiner and his report along with the earth is produced in the Court. If this procedure is departed from for reasons best known to the prosecution it indicates that the defence version may be true. If this procedure is departed from for reasons best known to the prosecution it indicates that the defence version may be true. The above decision of the Hon'ble Apex Court is dependent on the facts of that case where it was found that all the witnesses entered into a conspiracy to implicate five innocent persons in a murder case and as such the backbone of the prosecution case was broken. But here in the instant case admittedly Kanailal was murdered on the spot in the occurrence, the bloodstained earth controlled earth were also seized from the place of occurrence (Ext. 4/1 ). ( 23 ) MR. Dastoor has then argued before us that in the instant case the appellant Bhagawat appears to have sustained injuries but the prosecution has not explained those injuries. In this connection, he has referred to the case of Lakshmi Singh (supra) wherein it was, inter alia, held that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inference:1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; 3. that in a case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The Hon'ble Apex Court in coming to that conclusion had relied on the ratio decided in the case of State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 : (1975 Cri LJ 1079) wherein it was held as follows :"in a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case; any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. " ( 24 ) MR. Dastoor has also referred to the ratio decided in the case of State of Rajasthan v. Madho, AIR 1991 SC 1065 : (1991 Cri LJ 1343) in which it was, inter alia, held that where the prosecution fails to explain the injuries inflicted on the accused persons in the occurrence, the testimony of the witnesses will give impression that they are suppressing some part of the incident and in such circumstances the accused persons are entitled to benefit of doubt. ( 25 ) HERE in the instant case it appears from the evidence of the I. O. (P. W. 20) in his cross-examination that on 21-1-84 i. e. after two days of the occurrence Bhagawat Gayen, the appellant No. 1 in the instant case was arrested with injuries and he was forwarded to the Court. The P. W. 20 stated further that Bhagawat offered resistance at the time of arrest and thus he sustained injuries. None of the other witnesses stated anything about the injuries caused to Bhagawat. Mr. Dastoor during his argument drew our attention to the forwarding report whereby the appellant Bhagawat Gayen along with 13 others were forwarded to the Court. It appears from the said forwarding report that "some of the accused persons received minor injuries at the time of arrest due to the scuffling and they were duly treated in the Patashpur P. H. C. " ( 26 ) EXHIBIT A is the medical report of Bhagawat Gayen and it appears therefrom that he had sustained the following injuries:1. Huge haematoma of 4" x 21/2"; 2. Huge haematoma of 4" x 21/2"; 2. Diffuse Haematoma and tenderness all over the right knee; 3. Cellulitis; 4. Tenderness also felt over the right thigh; 5. Huge swelling (7 Haematoma) right forearm etc. ; 6. Multiple old bruises; 7. Tenderness also felt all over the body. The cause of injuries were shown to have been made by blunt weapon. The petition was admitted in the hospital on 21-1-84 with assault injury and it appears from Exhibit-A/1 that Bhagawat sustained fracture of lateral malleolus (R), communitted fracture of lower end of (R), ulna and crack fracture of upper end to tibia (R ). The Ext. A/1 further shows that the patient had also multiple abrasion all over his body and in the opinion of attending physician the injuries are grievous in nature caused by blunt object. What is interesting as regards the injuries of the appellant Bhagawat coming out from answer to the question put to the P. W. 10 and the evidence of the P. W. 20 on the question put by the defence in this regard is: "after the arrest of Bhagawat there was no third degree treatment on him. " thus it was the case of the defence that Bhagawat was assaulted by the police at the time of arrest which was, of course, denied by the I. O. The statement of this appellant Bhagawat Gayen made at the time of his examination under Section 313, Cr. P. C. is all the more interesting and thus when a question was put (question No. 6) to him as to whether he will adduce any evidence in defence he stated, "i am submitting a medical certificate" and nothing more than that. That being the position there is nothing before us that the appellant Bhagawat Gayen was assaulted at the time of occurrence. It is again a pointer to note here that the occurrence took place on 19-1-84 and in terms of Exts. A and A/1 produced by the defence Bhagawat was admitted to the hospital on 21-1-84 which is again the date when Bhagawat was arrested by the police. And it is the evidence of the P. W. 20 that Bhagawat sustained some injuries at the time of arrest when he gave some resistance. Now from the nature of the injuries as appears from the Ext. And it is the evidence of the P. W. 20 that Bhagawat sustained some injuries at the time of arrest when he gave some resistance. Now from the nature of the injuries as appears from the Ext. A/1 it cannot be conceived that had such injuries been caused, to the appellant, Bhagawat on 19-1-84 that is to say on the date ofoccurrence,bhagawat was without any treatment at least for two days. From this point of view also there appears nothing before us that Bhagawat sustained injuries in the occurrence and as such the case laws cited by Mr. Dastoor in this regard do not appear to have any application in the instant case. ( 27 ) MR. Dastoor, the learned counsel for the appellants then argues on the point of the medical evidence vis-a-vis the ocular evidence and in this regard he has referred to the ratio decided in the case of Wilayat Khan v. State of U. P. , AIR 1953 SC 122 : (1953 Cri LJ 662); Ram Narain v. State of Punjab, AIR 1975 SC 1727 : (1975 Cri LJ 1500); Subhash v. State of U. P. , AIR 1976 SC 1924 : 1976 Cri LJ 1521 and Sarwan Singh v. State of Punjab, AIR 1976 SC 2304 : 1976 Cri LJ 1757. On perusal of the decisions made in those cases it appears that in accepting the version of the injured or the witnesses of the prosecution as regards the injuries caused to the victim it must be taken care of as to whether the prosecution witnesses tried to match their evidence before the Court with the report of the doctor and in doing so the demeanour of the witnesses noted by the trial Judge should not be overweighed. In the case of Sarwan Singh (supra) the direct evidence was that the accused M inflicted injury with ghop which was recovered from his person while the evidence of the Doctor was that the ghop injury could not have been caused by the ghop shown to him and where the possibility of M being falsely roped in because of his relationship with co-accused could not be excluded, it was held that M deserved benefit of doubt and his acquittal should have been maintained by the High Court. ( 28 ) BUT in the instant case we do not find any conflict between the evidence of the prosecution witnesses and the evidence of the doctor so far the injury caused to Kanailal Jana and the instrument used for such injury and the person concerned who had caused such injury. There appears overwhelming evidence that Kanailal was hit on his head by the accused Bhagawat Gayen with tangi. True the other witnesses did not say anything about the use of the blunt side of the tangi by the appellant Bhagawat and it was only P. W. 8 who stated in his evidence that Bhagawat hit Kanailal with the blunt side of the tangi and in the evidence of the P. W. 11 that Bhagawat hit Kanai with back side of axe. The statement of the P. W. 8 in his examination-in-chief as regards the use of blunt side of tangi by Bhagawat on the head of Kanailal was not at all confronted in his cross-examination nor even challenged and there appears absolutely nothing before us that such evidence of the P. W. 8 was to adjust the evidence of the doctor. Accordingly the decisions referred to by Mr. Dastoor are not applicable to the instant case so far the injury caused to Kanailal by the appellant Bhagawat is concerned. ( 29 ) MR. Dastoor has of course argued before us that since it has come in the evidence that the blunt side of the tangi was used by Bhagawat it can be deduced that Bhagawat had no intention to cause death but we are unable to accept this argument particularly in view of the nature of the injuries inflicted on Bhagawat. It appears from the evidence of the P. W. 17 which we have already discussed in our foregoing lines that the skull bone of Kanailal was broken into pieces and driven inside the deep of the brain and it was a compound communitted fracture of the skull. The P. W. 17 further opined that the death was due to severe head injury. Thus, it is very perspicuous that Bhagawat hit on the head of Kanailal with tremendous force for which such type of severe injury was caused on the head. The place of injury is also a significant factor to determine the intention of the appellant Bhagawat. The P. W. 17 further opined that the death was due to severe head injury. Thus, it is very perspicuous that Bhagawat hit on the head of Kanailal with tremendous force for which such type of severe injury was caused on the head. The place of injury is also a significant factor to determine the intention of the appellant Bhagawat. Had Bhagawat no intention to cause death of Kanailal we are of considered view. Bhagawat would not have caused such injury with such force on such place of the victim. ( 30 ) APPELLANT No. 2 is here Ranu alias Ranendra Nath Roy. Record goes to show that the learned Sessions Judge framed charged under Sections 302/149, I. P. C. in respect of all the 42 accused persons facing trial before him including the appellant No. 2 for committing murder of Kanailal Jana. But the evidence which we have already discussed goes to show as regards the participation of the appellant No. 2 that he dragged Kanailal on the road having a pistol in his hand. It further appears from the evidence that he fired from his pistol aiming at the fleeing Lakshmi Kanta Prodhan (P. W. 1) but it missed the target. No charge appears to have been framed under Section 307, I. P. C. against Ranu for attempting murder of the P. W. 1. In fact, there appears absolutely nothing in the evidence of the witnesses against the appellant No. 2. Ranu except that he dragged Kanai on the road. Although the learned trial Judge was pleased to acquit all the other 40 accused persons facing trial before him he found the appellant No. 1 Bhagawat Gayen and the appellant No. 2 Ranu guilty of the offence under Section 302, I. P. C. It is again a pointer to note here that the learned trial Judge did not find the appellant No. 2. Ranu guilty of the offence under Section 302/149, I. P. C. although there is no specific participation of the appellant No. 2 for causing any injury on the person of the deceased, Kanailal. Ranu guilty of the offence under Section 302/149, I. P. C. although there is no specific participation of the appellant No. 2 for causing any injury on the person of the deceased, Kanailal. We do not subscribe the finding of the learned trial Judge in respect of conviction of appellant No. 2 for the offence under Section 302, I. P. C. , for which he is liable to be acquitted from the charge under Section 302, I. P. C. ( 31 ) IT appears from the judgment of the learned trial Judge that he found the appellant Nos. 3, 4, 5 and 6 namely Bharat Ch. Jana Ranjan Mondal, Basudeb Midya, Durgapada Mal guilty for committing offence under Section 325/149, I. P. C. and sentenced them to undergo rigorous imprisonment for a period of 5 years each. Now on scanning the evidence of the witnesses as we have already discussed at appears that the P. W. 1 stated in his evidence that he sustained splinter injury from the bomb thrown by Durgapada Mal but it appears from the evidence of his attending physician who is the P. W. 17 that the P. W. 1 did not name his assailant to him. The other injured is the P. W. 7. He stated in his evidence that he was assaulted by the accused Anil and Ranjan with lathis and he sustained injury by the bomb thrown by Bharat Jana. His attending physician is P. W. 18. There he mentioned the names of Faijuddin, Bharat and others as his assailants. He is conspicuously silent as regards Ranjan as his assailant to the P. W. 18. Anil is not the appellant before us. The other injured is the P. W. 8. He stated in his evidence that he was assaulted by Durgapada Mal with lathis on his left hand and Basudeb with 'katari' (a sharp cutting weapon) but before his attending physician, P. W. 18, he named Anadi Mondal who is not an appellant before us and Basudeb as his assailant. Thus, he has excluded Durgapada Mal as his assailant before his attending physician. The other injured is the P. W. 11. He stated in his evidence that he was assaulted by Durgapada Mal and Basudeb with lathis but he did not mention the name of any of his assailant to the doctor as doctor did not ask the names of his assailants. The other injured is the P. W. 11. He stated in his evidence that he was assaulted by Durgapada Mal and Basudeb with lathis but he did not mention the name of any of his assailant to the doctor as doctor did not ask the names of his assailants. It appears that P. W. 17 examined the P. W. 11 and found compound fracture on his right tibia and multiple small injuries on his body. The P. W. 17 is conspicuously silent as to whether he asked the P. W. 1 as regards the name of his assailant. Thus, the explanation given by the P. W. 11 as to why he did not mention the names of his assailants to his attending physician is quite acceptable keeping it in view that the victim does not spare actual assailants and implicate others falsely at the cost of his real assailants. The other victim is the P. W. 14. We do not like to give details the access of his evidence as regards the names of his assailant (sic) to none of accused persons named by this witness in his evidence and before his attending physician (P. W. 18) is appellant before us. Thus, if we sum up the evidence of the injured persons in the instant case it will appear that the appellant Nos. 3, 5 and 6 namely Bharat Ch. Jana, Badudeb Midya and Durgapada Mal participated in assaulting the prosecution parties. The evidence of the P. W. 17 goes to show that he examined the P. W. 1 and P. W. 11. According to him the injuries of other two persons were not grievous but simple. The P. W. 18 did not opine as regards the nature of the injuries caused to the P. W. 7. The P. W. 18 also examined the P. W. 8. But the P. W. 18 is also silent as regards the nature of the injuries caused to the P. W. 8. The P. W. 18 also examined the P. Ws. 11 and 14. But he has not mentioned the nature of the injuries sustained by them. Thus, there appears no ingredience of Section 325, I. P. C. against the appellant Nos. 2, 3, 5 and 6. But in view of the evidence as discussed above the appellant Nos. 3, 5 and 6 namely Bharat Ch. 11 and 14. But he has not mentioned the nature of the injuries sustained by them. Thus, there appears no ingredience of Section 325, I. P. C. against the appellant Nos. 2, 3, 5 and 6. But in view of the evidence as discussed above the appellant Nos. 3, 5 and 6 namely Bharat Ch. Jana, Basudeb Midya and Durgapada Mal are liable for committing offence under Section 323/149, I. P. C. and for which they are liable to be convicted. ( 32 ) THERE is no evidence established against the other appellant being Ranjan Mondal, appellant No. 4 for causing any kind of hurt to any of the prosecution parties for which he is liable to be acquitted from the charge under Section 325/149, I. P. C. ( 33 ) IN this opportunity we have also taken up the C. R. R. No. 1681 of 1989 under Sections 397, 401 and 468 of the Code of Criminal Procedure against all other 40 accused persons who were acquitted by the learned trial Judge. In the revisional application the evidence adduced by the witnesses has been discussed. It is stated further that the learned Judge acted illegal in not considering the extraneous matters which are not relevant to determine the guilt of the accused persons. This is actually the ground No. 2. We fail to understand as to why the learned Judge should consider the extraneous matters "which are not relevant to determine" the guilt of the accused persons. It is also stated that the learned Judge failed to appreciate the evidence of the witnesses adduced before him. It is further stated that the learned Judge was wrong to hold that the members of the unlawful assembly were independent and the acts were in excess only so far the case of the accused Bhagawat and Ranu is concerned. After considering the evidence as discussed by us we find the case of common intention of some of the accused persons for causing hurt and thus the appellant Nos. 3 to 6 were found guilty for causing offence under Section 323 read with Section 149, I. P. C. But, there is absolutely no evidence in respect of the O. Ps. After considering the evidence as discussed by us we find the case of common intention of some of the accused persons for causing hurt and thus the appellant Nos. 3 to 6 were found guilty for causing offence under Section 323 read with Section 149, I. P. C. But, there is absolutely no evidence in respect of the O. Ps. of this revisional application and as such we do not find any material irregularity or illegality in the judgment passed by the learned trial Judge for which the revisional application is liable to be dismissed. ( 34 ) THE appeal is accordingly allowed in part. The judgment of conviction and sentence for imprisonment of life for the offence under Section 302, I. P. C. passed against the appellant No. 1 Bhagawat Gayen is hereby affirmed. The judgment of conviction and sentence for the offence under Section 302, I. P. C. against the appellant No. 2 Ranu alias Ranendra Nath Roy is hereby set aside and he is acquitted of that offence under Section 302, I. P. C. The judgment of conviction and sentence passed against the other four appellants namely Bharat Ch. Jana, Ranjan Mondal, Basudeb Midya and Durgapada Mal for the offence under Section 325/149, I. P. C. is hereby set aside. But out of those four appellants three appellants namely Bharat Ch. Jana, Basudeb Midya and Durgapada Mal are found guilty for committing offence under Section 323/149, I. P. C. and they are sentenced to undergo rigorous imprisonment for one year for the offence under Section 323, I. P. C. No separate punishment is passed for the offence under Section 149, I. P. C. Appellant Ranjan Mondal is acquitted as no offence has been proved against him. The judgment of conviction and sentence passed by the learned trial Judge is hereby modified accordingly. ( 35 ) THE learned trial Court is directed to call upon the appellants who are on bail to serve out the sentence if there remains anything after setting off their period of detention, if any. ( 36 ) THE revisional application is hereby dismissed. ( 37 ) A copy of this judgment along with the L. C. R. be sent down to the learned lower Court forthwith. ( 38 ) SURJIT BARMAH ROY, J. :- I agree. Order accordingly.