JUDGMENT Amit Talukdar, J. This appeal is directed against the judgment and order dated 20.4.85 passed by the learned Sessions Judge, Malda in Sessions Trial No. 5 of 1985, thereby finding the appellant to have been guilty of the charge under section 304 Part-II of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- in default to suffer further two years rigorous imprisonment. 2. The prosecution case relates to an incident of 06.12.82 at about 13.00 hours in Mahisal Mouza under Gazole Police Station in the District of Malda when PW.1 was ploughing his land the appellant with his brothers Subal Halder, Naba Halder, Sukumar Halder and Gopal came there and told him that he would not allow PW.1 to plough the land till they had caught the fish from there and as they did not agree there was an altercation and the appellant threw a bamboo pole towards his brother Ramen Biswas which hit in the belly and he fell on the land and thereafter, he removed his brother to home and consulted with the compounder of Bamongola health centre and on the next morning sent his brother to Modipukur Hospital with his another brother, PW.5 and thereafter lodged the FIR scribed by PW.2. Ramen Biswas died on the next day at about 8.00 in the evening. 3. The prosecution in order to prove its case examined PW.1 the maker of the FIR and the brother of deceased who witnessed the entire occurrence PW.2 was related to the deceased family and was the scribe of the FIR (Ext. 1.). PW.3 another eye-witness was cultivating his own land and on hearing a commotion went to the land of PW.1 and found that the appellant threw a bamboo pole towards deceased Ramen Biswas which hit him on his abdomen after Ramen Biswas fell down PW.1 caught hold of the said bamboo pole and attacked and caused fracture injury on the head of the appellant. PW.3 further deposed that he and one Kalipada Biswas, came to the place of occurrence when he was requested by PW.1 to guard his plough and bullock while he took his brother Ramen Biswas home and the accused persons left the place by their boat. PW.3 further deposed that he and one Kalipada Biswas, came to the place of occurrence when he was requested by PW.1 to guard his plough and bullock while he took his brother Ramen Biswas home and the accused persons left the place by their boat. PW.4 who has land contagiously to that of PW.1 also deposed while cultivating on the date of occurrence heard a shout and went to the place of occurrence and saw Ramen Biswas felling on the ground. The appellant threw a bamboo pole towards Ramen which hit him on his abdomen. He corroborates PW.3 with regard to the attack by the appellant and others on PW.1 and his brothers and the evidence of PW.3 with regard to PW.1 catching hold of the bamboo pole and hitting appellant on his head causing an injury and corroborates the PW.5 a brother of PW.1 and deceased Ramen Biswas, signed on the Inquest Report conducted by the police. His cross-examination was declined. PW.6, PW.7 and PW.8 were all tendered PW. 9 signed on the seizure list in connection with the sale deeds and documents. PW.10 was a pharmacist of Bamongola P.H.C. His cross-examination is also declined. PW.11 conducted the post-mortem examination on the dead-body of Ramen Biswas. He found one abrasion over the right side of umbilical region and found ruptured intestine and right kidney was ruptured. Death, in his opinion was due to the effect of the injury which was ante-mortem and homicidal in nature and that such injury can be caused if a pamboo pole for rowing a boat is thrown from a distance. PW.12 recorded the formal FIR (Ext. 1). In his cross-examination he stated that the records of G.R. Case No. 1712 of 1982 was shown and he admitted that on the basis of the direction by the learned Magistrate he drew up the formal FIR and started Gajol P.S. case No. 6 dated 22.12.82 against Sukdeb Biswas, and five others under sections 147/148/149/447/379/307 of the Indian Penal Code. The said formal FIR was marked as Ext. A. He also forwarded the charge-sheet submitted in this case. PW.13 an A.S.I. of Police conducted the inquest over the body of deceased Ramen Biswas. PW.14 took up the investigation of the case and after completion of the same submitted the charge-sheet. The said formal FIR was marked as Ext. A. He also forwarded the charge-sheet submitted in this case. PW.13 an A.S.I. of Police conducted the inquest over the body of deceased Ramen Biswas. PW.14 took up the investigation of the case and after completion of the same submitted the charge-sheet. PW.15 was the Medical Officer of the Bamongola P.H.C. where the deceased Ramen Biswas was at first admitted and his treatment was made. He also stated that he examined the appellant on the same day in the evening at 7.15 p.m. where he was admitted as an indoor patient and found injury on the head of the appellant along with other injuries and he was interned in the health centre till the time of his discharge on 27.1.83. 4. That is all the evidence adduced by the prosecution. 5. The defence examined two witnesses to prove its case. DW.1 was a registered clerk of Shri Binoy Sarkar, learned Advocate of the Malda Court who wrote the petition of complaint on the basis of the complaint made by Subal Halder, brother of the appellant. DW.2 was the brother of the appellant and he lodged the petition of complaint of the basis of which the counter-case against the PW.1, and others was started. He deposed that PW.1, Sachin Biswas, Nilkanta Halder, Raso Biswas and Ramen Biswas (since deceased) were accused in the said complaint (Ext.B) lodged by him DW.2 further deposed that on that date PW.1 came to catch fish from his jalkar and when the appellant resisted PW.1 hit him on his head with a spade and as a result of which he was admitted to a hospital and he lodged the petition of complaint and there was delay since he was looking after the hospitalization of his brother. 6. The appeal has been argued by Shri Tapan Deb Nandi, learned Advocate for the appellant who has also relied on a written notes of argument. Shri Nandi after placing the evidence submitted that although PW.3 and PW.4, apart from PW.1, were showed as eye-witnesses; but, in fact, PW.1 neither in the FIR nor in his evidence mentioned with regard to their presence and the learned Trial Court also held that PWs. 3 and 4 were eye-witnesses. As such, he stated that the prosecution case was made up of concocted witnesses. 3 and 4 were eye-witnesses. As such, he stated that the prosecution case was made up of concocted witnesses. He next submitted that the cross-examination of PW.15 revealed the appellant was admitted on the self-same day at the Bamongola P.H.C. and was an indoor patient till 27.1.83 with serious injuries on the scalp. He submitted that it would be apparent from the evidence on record that PW.1 and others were aggressors and he pointed to the examination under section 313, Cr.P.C. of the appellant where he categorically stated PW.1 has been catching fish in their place and on protest he hit him with his spade and his brother with a stick. Shri Nandi put great emphasis on the cross-examination of PW.1 and submitted that he categorically stated that except "I and my brother none else was present when we went to cultivate our land." As such, the evidence of PWs. 2 and 3, which is not only been discarded but it shows the prosecution case was not a truthful version of the actual incident. He also relied on Chuhar Singh vs. State of Haryana, 1976 SCC (Cri) 215 and submitted that the sole eye-witness 4 PW.1 being discrepant he ought not to have been believed. 7. Shri Nandi referred to the unexplained delay in sending the F.I.R. to the court and showed from the evidence of PW.1 that he lodged the complaint (Ext. 1) on 07.12.82 at 14.30 hours. But the same was despatched on 10.12.82. He referred to the decision of State of Rajasthan vs. Teja Singh & Ors., 2001 SCC (Cri.) 439 in support of his contention. 8. Referring to the FIR lodged by PW.1 he showed that since there was a conflict between the statements and variance between the earlier version the prosecution case was liable to be disbelieved entirely. In support of his contention he referred to the decision of Kalyan Singh & Ors. vs. State of U.P., 2001 AIR SCW 3953 and that non-mention of eye-witnesses in the FIR and in the evidence in Court by PW.1 severely damaged the prosecution case, was also his submission and he referred to Ram Kumar Pandey vs. State of Madhya Pradesh, 1975 SCC (Cri.) 225. 9. vs. State of U.P., 2001 AIR SCW 3953 and that non-mention of eye-witnesses in the FIR and in the evidence in Court by PW.1 severely damaged the prosecution case, was also his submission and he referred to Ram Kumar Pandey vs. State of Madhya Pradesh, 1975 SCC (Cri.) 225. 9. Shri Nandi summed up his argument that the omission on the part of the prosecution to explain the injuries sustained by the appellant was fatal for the prosecution and the appellant acted in his right of private defence exercise his right of private defence and the charge against him could not be sustained and further that the defence evidence was not considered by the learned Trial Court correctly. 10. Shri A.A. Ahmed appearing for the State submitted that there was no other defence-witness except D.W.2 to substantiate his case with regard to right of private defence and the complaint lodged by DW.1 was a counter blast of the main case against the appellant. The learned State Advocate referring to Ext. B submitted that the presence of Ramen Biswas (since deceased) was not there and the defence did not cross-examine either PW.3 or PW.4. The plot of land belonging to the appellant was not there went unchallenged and lastly, he submitted that the delay in lodging the FIR has been duly explained and he did not find any merit in the appeal and prayed for dismissal of the same. 11. The charge was framed under section 304 of the Indian Penal Code against the appellant and he was convicted under Part-II of the said section. Let us see as to whether the prosecution has been able to bring home the said charge in the light of the evidence on record vis-a-vis the submission of Shri Nandi. 12. As discussed earlier PW.1 was the main witness on whose evidence the prosecution case was based. A comparison of the FIR (Ext.1) made by PW.1 and his evidence in Court reveals the following discrepancies : (1) PW.1 did not gave the names of PW.2 and PW.3 as persons who came to the place of occurrence immediately and guarded his plough and bullock after the occurrence; instead he stated that only some neighbouring people came, there. A comparison of the FIR (Ext.1) made by PW.1 and his evidence in Court reveals the following discrepancies : (1) PW.1 did not gave the names of PW.2 and PW.3 as persons who came to the place of occurrence immediately and guarded his plough and bullock after the occurrence; instead he stated that only some neighbouring people came, there. (2) In his deposition he spoke of taking his brother to his house thereafter going to the Bamongola Health Centre from where he brought a compounder and on the next morning he sent one of his brothers to the Modipukur Hospital along with PW.3 another brother; but in his FIR he stated that he had taken injured Ramen in his lap straight to Modipukur Hospital and got him admitted there and thereafter went to the Thana for filing the Ejahar. PW.1 stands contradicted to that effect and Shri Nandi is correct that the names of PW.2 and PW.3 as eye-witnesses were not stated in the First Information Report. (3) In the FIR PW.1 said-‘Taking that bamboo pole I began to resist the opposite parties in order to save my life and that of my brother and began to shout.’ But, in his deposition nothing in that respect was stated. This assumes some importance with regard to the unexplained injury suffered by the appellant and as deposed by PW.15 and the existence of a counter-case on the self-same date. 13. PW.1, who happens to be an eye-witness having dithered from his earlier version i.e., the FIR (Ext. 1) given in the very first blush. On the very next date of incident (i.e., 7.12.82 at 14.30 hrs.) his evidence obviously stands contradicted to a great extent and has to be appreciated with great caution in the light of other attending circumstances. The decisions cited by Shri Nandi in Kalyan Singh & Ors. vs. State of U.P. (supra) and Ram Kumar Pandey vs. State of Madhya Pradesh (supra) are quite apposite in this connection. 14. With regard to the decision of State of Rajasthan vs. Teja Singh & Ors. (supra) relied upon by Shri Nandi on the question of delay in sending the FIR (Ext. 1) has also some relevance in view of the fact that although the date of lodging the FIR (Ext. 1) was on 07.12.82 it was placed before the learned Sub-Divisional Judicial Magistrate, Malda only on 19.12.1982. 15. (supra) relied upon by Shri Nandi on the question of delay in sending the FIR (Ext. 1) has also some relevance in view of the fact that although the date of lodging the FIR (Ext. 1) was on 07.12.82 it was placed before the learned Sub-Divisional Judicial Magistrate, Malda only on 19.12.1982. 15. The evidence of DW.2 was very lightly brushed aside by the learned Judge and the existence of the counter-case (Ext. B) was not at all adhered to by the learned Judge and although as a general rule it cannot be said that injury suffered by the accused has to be explained by the prosecution and in absence thereof the prosecution case will suffer; yet, in this case from the surrounding circumstances, we are of the view, that the serious injury suffered by the appellant simultaneously cannot absolve the prosecution from its onus of proving the injury on the appellant. 16. One thing is absolutely clear that the existence of an altercation stood admitted and in the eye of the evidence on record it cannot be said with certainty was the aggressor. In this connection the provisions of section 97 of the Indian Penal Code can have square application. The learned Judge did not at all take any pains to elucidate the defence version as forthcoming from the evidence of DW.1 and discarded the same as a belated version. In fact, the learned Judge diluted the medical evidence on behalf of the defence and it cannot be surely said who was the aggressor. 17. From a perusal of the evidence of PW.15 the Medical Officer of the Bamongola Primary Health Centre that he examined the appellant on 06.12.82 at about 7.15 p.m. where he was admitted as an indoor patient till 27.1.83. He found:- "(1) Injury on the scalp situated over left parietal bone about 4 cm in length staring from 1cm lateral of midpoint of sagital suchar laterally down wards. Margine of which were regular. Ozing from the wound noted. (2) Over right loin-hrusie and swelling with tenderness noted over of the back of the right loin. Swelling was of right loin with pain during micturation and red shoky urine noted (Haematuira). Margine of which were regular. Ozing from the wound noted. (2) Over right loin-hrusie and swelling with tenderness noted over of the back of the right loin. Swelling was of right loin with pain during micturation and red shoky urine noted (Haematuira). (3) Cut injury over the dorsum of the right foot just proxical to the base of the great matatursel bone noted, about 1cm x 1cm in size, not deep." According to him "The age of the injuries were noted as fresh." He clarified that by fresh he meant: 'the injuries within 6 hours'. He further deposed that at the time of admission the prognosis of the patient 'was grave'. 18. The date of incident of the prosecution case was also of 06.12.82 at about 13.00 hrs. from the time of the occurrence till the appellant was taken before PW.15 the time of the injury noted by the latter is quite commensurate with his finding (i.e., ‘By fresh I mean the injuries within 6 hours.’). PW.15 the Medical Officer who spoke of such injuries suffered by the appellant was not taken seriously by the learned Judge and he, in fact, seem to have substituted his own reasoning to fill in the lacuna of unexplained injury on the appellant. 19. The evidence of PW.1 establishes that there was an altercation after PW.1 and his men were told by the appellant and his brothers that they would not allow us to plough the land till they had caught the fish. PW.1 proceeded further to say ‘During the altercation Ghana Halder (appellant) threw a bamboo pole which he was holding in his hand towards Ramen Biswas (deceased) which hit him below the navel.’ Although the learned Judge had found as both the PW.3 and PW.4 were not stated by PW.1 be the eye-witnesses 'their alleged presence at the time of the incident appears to be highly doubtful and as such their evidence in this regard should be totally ignored. So about the incident we are left with the sole evidence of PW.1 and the FIR.’ 20. PW.3 also stated that after the appellant threw a loga which hit the deceased on his abdomen. PW.1 after being attacked snatched away the said loga from the appellant and started moving it around which hit the appellant on his head. PW.4 also spoke in the same line. 21. PW.3 also stated that after the appellant threw a loga which hit the deceased on his abdomen. PW.1 after being attacked snatched away the said loga from the appellant and started moving it around which hit the appellant on his head. PW.4 also spoke in the same line. 21. Apart, from the said position PW.1 who materially contradicted his earlier version in the FIR (Ext.1) being the sole eye-witness who was discrepant and contradictory and as he is an interested witness in the backdrop of the present case it would be unsafe to base the conviction relying on the said evidence. The decision of Chuhar Singh vs. State of Haryana (supra) can be applied with full force in the present case. 22. As discussed here-in-above the provisions of section 97 of the Indian Penal Code is applicable and in view of the emerging position from the evidence on record that who was the actual aggressor having remained undecided, the appellant is certainly entitled to benefit of doubt. 23. That apart, the learned Judge very much relied on the medical evidence on record and found: "Considering the above evidence on record I hold that the prosecution has been able to prove the case against the accused beyond all reasonable doubt. The medical evidence that Ramen Biswas died of ruptured intestine and ruptured right kidney supports the evidence of PW.1 that victim was injured 'loga' or bamboo pole towards him which hit him on his abdomen below the navel." 24. It would be peculiar to note that from the 313 examination held by the learned Judge the appellant was never asked any question on the said evidence. Only two rolled-up questions with regard to the incident was asked. As such, the finding of the learned Judge on a point which was not put to the appellant during his examination under section 313, Code of Criminal Procedure, of course, be used against him. This, itself, would not have been much of a matter it not caused prejudice. But, in view of the discussion held here-in-above certainly the question of prejudice arises. 25. In view of our aforesaid discussion we are unable to uphold the conviction of the appellant and accordingly, set aside the same and allow the appeal. Appeal allowed. The appellant stands discharged from his bail bond. Arunava Barua, J. : I agree. Appeal allowed.