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2004 DIGILAW 398 (JHR)

Madhusudan Datta v. State of Jharkhand

2004-04-13

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2004
Judgment Lakshman Uraon, J.-Both these Criminal Appeals arise out of the common judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Sahibganj, in Sessions Case No. 129 of 1995; hence both of them have been heard together and the common order, passed by this Court, will govern both the Criminal Appeals. 2. Appellant Madhusudan Datta (Cr. Appeal No. 277 of 2001) has preferred the appeal against the judgment and order of conviction and sentence dated 25th May, 2001 and 28th May, 2001 respectively, whereby and whereunder he has been convicted under Section 302 read with Section 109 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellants in Criminal Appeal No. 293 of 2001 have preferred the appeal against their conviction under Section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 3. The prosecution case is based on the Fard-beyan (Ext. 8) of the informant Md. Rajjak Ansari (PW 4), recorded on 26.10.1994 at 22.00 hours at Village Fulbhanga by, S.I. B.B. Singh (not examined). The informant Md. Rajjak Ansari had gone to Logai Hatia on 26.10.1994 (Wednesday) to purchase vegetables. At about 4.30 p.m. Rugna Hasda (appellant no. 1 in Cr. Appeal No. 293 of 2001) beating Dugdugi, gave a round of the market. Thereafter, he went to the Mukhia of Panchkathia Gram Panchayat, namely, Madhusudan Datta (appellant in Cr. Appeal No. 277 of 2001). As indicated by the Mukhia-Madhusudan Datta, appellant Rugna Hasda along with his associates went towards west of the hill and looted the beef-sellers. About 70 to 80 persons assembled there, armed with Lathi, Farsa, bows and arrows. Out of fear the persons, who had gone to Logai Hatia, fled away. The informant• saw that the mob, all of a sudden started assaulting four persons, who had assembled. He identified the son of Udhu Manjhi of Logai and Daku Tudu (appellant no. 2 in Cr. Appeal no. 299 of 2001) assaulting with Lathi and rod to Sahid Ansari. Sahid Ansari when raised alarm to save his life, the informant rushed there. He was assaulted with Lathi and rod. He and his father both sustained bleeding injuries. He further saw Bojan Tudu, Sagar Soren, Jugu Hembram, Ram Das Hembram, Ingru Hembram, Loga Hasda, Birju Lal Soren (appellant no. 3 in Cr. Sahid Ansari when raised alarm to save his life, the informant rushed there. He was assaulted with Lathi and rod. He and his father both sustained bleeding injuries. He further saw Bojan Tudu, Sagar Soren, Jugu Hembram, Ram Das Hembram, Ingru Hembram, Loga Hasda, Birju Lal Soren (appellant no. 3 in Cr. Appeal No. 293 of 2001) assaulting Sattar Mian, Zunab Ali and Rahmatullah. They also dragged them towards the hill. They also assaulted many others, who out of fear fled away. Later on the informant heard that his villager Rahamtullah Momin was admitted in hospital in a seriously injured condition, lying unconscious. He also came to know that Soma Momin and Sahid Momin were also in the hospital in injured condition. Juneb Ali Momin was murdered at the spot on the hill. Sattar Mian was traceless. The alleged occurrence took place only because the rioters did not want the sale of beef on the hill near the market place. 4. The learned Additional Sessions Judge, Sahibganj, framed charges against eleven accused persons for the offences under Sections 302/149, 307/149 and 148 of the Indian Penal Code. Madhusudan Datta along with Rugna Hembram were further charged under Section 302/109 of the Indian Penal Code for abetting murder of Juneb Ali, Rahamtullah Momin and Abdul Sattar. 5. The prosecution examined altogether twenty witnesses in order to substantiate the charges framed against the accused persons. PW 4 Rajjak Ansari, PW 6 Md. Mustakin Ansari, PW 7 Md. Saiyad Ali Ansari, PW 8 Md. Asraf Ali, PW 9 Kalamtullah, PW 11 Sahid Momin, PW 12 Rajjak Ansari, PW 13 Aainum iv1omin, PW 14 Noor Islam, PW 15 Wasir Momin and PW 16 Rayazul Momin claimed themselves as eye witnesses. PW 1 Dr. Hamesh Prasad conducted autopsy on the dead body of Rahamtulla and Zuneb Ali. Exts. 1 and 2 are the Post Mortem Reports, prepared in his pen and signature. PW 2 Dr. Alok Kumar Mandai has conducted the autopsy on the dead body of Abdul Sattar and Ext. 3 is the Post Mortem Report in his pen and signature. PW 3 Hemtullah Momin is the witness of the inquest reports n respect of the dead bodies of Rahamtullah and Juneb Ali PW 5 Md. 3ulam Rasol is a seizure list witness in respect of the seized blood stained soil on Nhich he signed Exts. 4 and 4/1. 3 is the Post Mortem Report in his pen and signature. PW 3 Hemtullah Momin is the witness of the inquest reports n respect of the dead bodies of Rahamtullah and Juneb Ali PW 5 Md. 3ulam Rasol is a seizure list witness in respect of the seized blood stained soil on Nhich he signed Exts. 4 and 4/1. PW 10 Sarfuddin could not identify the Santhals, who assaulted the Muslims and dragged them towards the hill. He was declared hostile by the prosecution. PW 17 Dr. Abilesh Kumar examined Rahamtulla who later on died in course of his treatment in the hospital. He also examined injured Shyam Nooreman. Injury report, issued by him, is Ext. 6. He also examined injured Saiyad Momin son of Ratholi Momin. Ext. 5/1 is the injury report, issued in his pen and signature. He also examined injured Saiyad Momin son of Shyam Nooreman. Ext. 6/2 is the injury report, issued in his pen and signature. PW 18 Jiwan Turi is the witness on the inquest report, prepared in respect of the dead body of Abdul Sattar. PW 19 Lakhi Ram Turi is the seizure list witness in respect of the seized remnants of the slaughtered animals. PW 20 Bihari Lal Roy, a formal witness, has proved the formal F.I.R. in the pen and signature of the then A.S.I. Ram Bali and Fard-beyan (Ext. 8) in the pen and signature of the then S.I., B.B. Singh, seizure list (Ext. 9), inquest reports (Exts. 10, 10/1 and 10/2), Zimmanama (Ext. 11), another seizure list (Ext. 9/1) and also the case diary from paragraph no. 1 to paragraph no. 262 (Ext. 12). This witness has deposed that the then S.I. of Barhait Police Station, B.B. Singh on being promoted as Inspector of Police, retired from service and his whereabouts is not known. 6. The defence has also examined Chhotku Agrahani (DW 1), Madhusudan Datta (DW 2) and Benjamin Besra (DW 3). DW 1 and DW 3 have deposed that Santhals beating small drums surrounded the market and started assaulting the Mians. They also went towards the hill to assault and loot the beef sellers. They had never gone to Madhusudan Datta (Mukhia). DW 3 Madhusudan Datta, Mukhia (appellant in Cr. DW 1 and DW 3 have deposed that Santhals beating small drums surrounded the market and started assaulting the Mians. They also went towards the hill to assault and loot the beef sellers. They had never gone to Madhusudan Datta (Mukhia). DW 3 Madhusudan Datta, Mukhia (appellant in Cr. Appeal No. 277 of 2001) has taken the alibi for his false implication only because he had lodged criminal case against the Mians for slaughtering cows in open place. Ext. A is his written report and F.I.R. is Ext. B. He denied to have given any hint to the Santhals to assault the Mians. 7. The learned Additional Sessions Judge, Sahebganj, having relied the evidence of PW 6 Mustkin Ansari and PW 16 Riyazul Momin, believing their evidence reliable, who identified these appellants, who were the members of the unlawful assembly and had taken active part in assaulting the Muslims, resulting the death of three persons, convicted and sentenced them thereunder. 8. The learned defence counsel appearing on behalf of the appellants in both the Criminal Appeals has assailed the judgment and order of conviction and sentence, passed against the appellants, on the ground that the informant Rajjak Ansari (PW 4) did not name any of the appellants rather his statement is vague that the Santhals after beating small drum assembled at Logai Hatia and started assaulting the Muslims. He only named Madhusudan Datta (appellant in Cr. Appeal No. 277 of 2001), alleging against him that he was seen amongst the Santhals. PW 6 has deposed that the Mukhia Madhusudan took all the Santhals. The Santhals started assaulting the Muslims. He has not named any of the Santhals rather he has deposed that Mukhia Madhusudan Datta was leading the Santhals. He deposed that Santhals injures Sahid Momin, Saiyad Momin, Abdul Sattar, Ramatulla Momin and others. He also admitted that Madhusudan Datta (Mukhia) had filed a case against him and others regarding cow-slaughtering in the nearby market on the hill. As per his statement only one Santhal beat small drum, contradicting the statement of PW 4 Rajjak Ansari that on the beating of drum, Santhals assembled and started assaulting. PW 7 Md. Saiyad Ali Ansari claimed that he saw Santhals who went to Madhusudan Datta, carrying small drums and thereafter, started assaulting the Muslims. On the other hand, PW 8 Md. PW 7 Md. Saiyad Ali Ansari claimed that he saw Santhals who went to Madhusudan Datta, carrying small drums and thereafter, started assaulting the Muslims. On the other hand, PW 8 Md. Asraf Ali has deposed that Madhusudan Datta came on motorcycle from outside and called the Santhals at the tea-stall. Thereafter, Santhals started beating drums. PW 9 Kalamtullah claims that the son of Ganga Paharia beat Nagara. On his beating Nagara, many Santhals went to the shop of Madhusudan, armed with bows-arrows, Farsa, Bhala, axe etc. weapons. The mob was led by Madhusudan. Thereafter, Santhals started loot-paat in the market. PW 11 Sahid Momin has deposed that the Santhals went to the shop of Madhusudan Datta, beating drums. He has also deposed that Madhusudan and other Santhals were armed with Lathi and surrounded him. However, he has not deposed before the I.O. that Santhals went to the shop of Madhusudan Datta and came from that shop, beating drums. PW 12 Rajjak Ansari has deposed that Madhusudan Datta ordered the Santhals to kill the Mians. On his instigation, the Santhals started assaulting. PW 12 Noor Islam and PW 15 Wasir Momin have deposed that beating drums, 10 to 15 Santhals went to the shop of Madhusudan Datta and had a talk with him. When Madhusudan Datta instigated the Santhals, they went on the pitch road of Logai Hatia and started assaulting. The mob was led by appellant Madhusudan Datta (Mukhia). This witness PW 15 Wasi Momin had not gone to the shop of Madhusudan Datta. PW 16 Riyazul Momin has deposed that one Santhal boy, named, Rugna came beating drum along with 8 to 10 Santhals and went to the shop of Madhusudan Datta. They had a talk with Madhusudan Datta. Madhusudan Datta led the Santhals, who indulged in looting and assaulting the Mians. 9. Learned counsel for the appellants has submitted that the place of occurrence has not been established in this case, as the I.O. of this case has not been examined. All the Prosecution Witnesses have stated that the alleged occurrence took place at Logai Hatia itself, which is contrary to the First Information Report, lodged by the informant Rajjak Ansari (PW 4). The First Information Report shows that at 4.30 p.m. Rugna Hasda (appellant) came beating small drum and gave a round of the market. All the Prosecution Witnesses have stated that the alleged occurrence took place at Logai Hatia itself, which is contrary to the First Information Report, lodged by the informant Rajjak Ansari (PW 4). The First Information Report shows that at 4.30 p.m. Rugna Hasda (appellant) came beating small drum and gave a round of the market. Thereafter he went to the Mukhia Madhusudan Datta on whose instigation Rugna (Cr. Appeal No. 277 of 2001), beating drum went to Mukhia Madhusudan Datta. Thereafter, he along with 70 to 80 Santhals went to the hill and started looting the beef sellers. Appellant Daku Tudu (Cr. Appeal No. 293 of 2001) assaulted Shahid Ansari and the informant Rajjak Ansari. Thereafter, all the Santhals, named in the F.I.R. dragged Sattar Mian, Zuneb Ali and Rahamtullah and assaulted them, resulting their death. Thus, the place of occurrence is doubtful as to whether three deceased Zuneb Ali, Rahamtullah Momin and Abdul Sattar were assaulted at the hill or at the market Logai itself. Similarly the evidence of Shyam Nooreman, Shahid Momin and Saiyad Momin, who also received injuries on being assaulted by Santhals, has not been corroborated by any of the witnesses as to who assaulted them. Only it has been alleged in vague terms that Santhals who were in the mob assaulted, causing three deaths and injuries to three Muslims. The informant although has claimed that he was also assaulted but no injury report is on the record. The alleged occurrence took place on 26.10.1994 but the F.I.R. was received in the court after delay of five days only on 31.10.1994. The prosecution has not explained the delay in sending the F.I.R. rather non-examination of the I.O. has caused prejudice to the appellants and the prosecution got enough opportunity to embellish and concoct the prosecution case to implicate all the appellants due to previous enmity. Regarding instigation or abetment, as alleged against appellant Madhusudan Datta in Cr. Appeal No. 277 of 2001, also there is contradictory statement as to whether Madhusudan Datta was in his shop where only appellant Rugna Hasda went there and he gave a round beating the drum or Madhusudan Datta came on a motorcycle alone and went to his shop. Regarding instigation or abetment, as alleged against appellant Madhusudan Datta in Cr. Appeal No. 277 of 2001, also there is contradictory statement as to whether Madhusudan Datta was in his shop where only appellant Rugna Hasda went there and he gave a round beating the drum or Madhusudan Datta came on a motorcycle alone and went to his shop. There is also no specific allegation that there was pre-plan or prior meeting of minds of the Sathals and the Mukhra Madhusudan Datta to hatch up criminal conspiracy to cause murders of Muslims. The evidence as to whether Madhusudan Datta led the Santhal mob has also been contradicted in the statements of the intereste~ withnesses itself. It is not possible that from a long distance the witnesses could have heard the talk in between the appellants of Cr. Appeal No. 293 of 2001 and the appellant Madhusudan Datta of Cr. Appeal No. 277 of 2001 regarding instigation or meeting of minds to kill" the Muslims. On these grounds it was urged that the prosecution case in based on concoction. The prosecution has failed to establish the place of occurrence. The I.O. has purposely been suppressed by not examining him only because there is delay in sending the F.I.R. to the court of five days, which could have been explained by the I.O. But the same could not be explained. On these grounds, it was urged that the appellants in both the Cr. Appeals deserve acquittal, giving them benefit of doubts. 10. Learned A.P.P. refuting the arguments advanced on behalf of the appellants in both the Cr. Appeals, has submitted that the learned court below has relied the evidence of PW 4 informant Rajjak Ansari, PW 6 Mustkim Ansari, PW 7 Md. Saiyad Ali Ansari, PW 8 Md. Asraf Ali, PW 9 Kalamtullah Mian, PW 11 Shahid Momin, PW 12 Rajjak Ansari, PW 13 Ainul Momin, PW 14 Noor Islam, PW 15 Wasir Mian, PW 16 Riyazul Mian and opined that they were present at Logai market at the time of the alleged occurrence and are the eye witnesses. They have deposed that appellant Rugna Hasda beating the drum went to appellant Madhusudan Datta. Having heard the sound of beating drum, 70 to 80 Santhals assembled there, who stated assaulting the Muslims, causing death of Zuneb Ali, Rahamtullah Momin and Abdul Sattar. They have deposed that appellant Rugna Hasda beating the drum went to appellant Madhusudan Datta. Having heard the sound of beating drum, 70 to 80 Santhals assembled there, who stated assaulting the Muslims, causing death of Zuneb Ali, Rahamtullah Momin and Abdul Sattar. They also injured Shyam Nooreman Momin, Shahid Momin and Saiyad Momin on whose persons injuries were found by Dr. Adhilesh Kumar (PW 7) and also Dr. Mahesh Prasad (PW 1) who conducted the post-mortem examination on the dead bodies of Rahamtullah, Zuneb Ali (Exts. 1 and 2) and Dr. Alakh Kumar Mandai (PW 2), who conducted post-mortem examination on the dead body of Abdul Sattar (Ext. 3). It was submitted that the learned court below has considered the evidence of the eye witnesses and injured witnesses and convicted these appellants, as the evidence of the doctors who examined the injures and conducted the post-mortem examinations on the dead bodies has been corroborated by the ocular evidence of the eye witnesses. 11. In the present case the genesis of the alleged occurrence, as alleged by the prosecution, is to prohibit cow-slaughtering in a nearby hill of Lugai Market, which is an open place. The Santhals were objecting the cow-slaughtering in the market. Earlier also appellant Madhusudan Datta (Cr. Appeal No. 277 of 2001) who has examined himself as DW 2, had informed in writing against the Muslims for which a case was registered and the Muslims were sent to jail. Thus, the animosity is there in between the parties. Considering the admitted fact of earlier lodged case against the Muslims by appellant Madhusudan Datta, I have to evaluate the evidence of the witnesses as to whether their evidence is consistent to prove the charges levelled under Section 302/109 of the Indian Penal Code against appellant Madhusudan Datta and charge under Section 302/149 of the Indian Penal Code against the other three appellants, namely, Rugna Hasda, Birju Lal Soren and Daku Tudu of Cr. Appeal No. 293 of 2001. 12. The I.O. has not been examined in this case. All the witnesses who have claimed themselves to be the eye witnesses have deposed that Santhals came beating drums out of whom they claimed to have identified only three appellants of Cr. Appeal No. 293 of 2001. They have alleged that other Santhals armed with bows, arrows, axe, Bhals and Lath; started assaulting the Muslims at Logai Hatia. All the witnesses who have claimed themselves to be the eye witnesses have deposed that Santhals came beating drums out of whom they claimed to have identified only three appellants of Cr. Appeal No. 293 of 2001. They have alleged that other Santhals armed with bows, arrows, axe, Bhals and Lath; started assaulting the Muslims at Logai Hatia. There was a commotion and the persons, who had gone to Logai Market fled away hither and thither. The witnesses are not consistent in stating that the Santhals led by appellant Madhusudan Datta dragged Zuneb AIi, Rahamtullah Momin and Abdul Sattar to• wards the nearby hill, where they were assaulted, resulting their death. In the F.I.R. the informant has deposed that the appellants along with Santhals went to the nearby hill where cows were slaughtered for sale. Appellants in Cr. Appeal No. 293 of 2001 along with other Santhals looted the Muslims there and also assaulted them. In course of evidence, the interested eye witnesses have not corroborated the F.I.R. that the three deceased were dragged outside the market and were assaulted, resulting their death. They have also not whispered as to whether the appellants of Cr. Appeal No. 293 of 2001 had gone to the hill top where cows were slaughtered and beef was at sale. Due to non-examination of the I.O. the exact place of occurrence where the assault took place could not be established. It was the market place at Logai where the alleged occurrence took place but the dead bodies were not found at the market. Ext. 10 series (inquest reports) show that the dead bodies of Abdul Sattar, Juneb Ali and Rahamtullah were found by the I.O. at a distance of 1/2 Km. away from Logai Hatia towards north-west corner of the hill. Inquest reports were also proved by PW 20, an Advocate Clerk, a formal witness, besides seizure list, F.I.R., Fardbeyan and the case diary. 13. In the Fard-beyan PW 4 informant Md. Rajjak has deposed that he did not name any of the Santhals as accused in the F.I.R. except appellant Madhusudan Datta of Cr. Appeal No. 277 of 2001. Although the learned court below has disbelieved the evidence of PW 4, even then he held that Madhusudan Datta instigated the Santhals. On the beating of drum by Rugna Hasda, 70 to 80 Santhals assembled and went on the hill. Appeal No. 277 of 2001. Although the learned court below has disbelieved the evidence of PW 4, even then he held that Madhusudan Datta instigated the Santhals. On the beating of drum by Rugna Hasda, 70 to 80 Santhals assembled and went on the hill. They started looting and assaulting Muslims. There is no specific averment as to who assaulted Zuneb Ansari, Rahamtullah Momin, Abdul Sattar, Shyam Nooreman, Shahid Momin and Saiyad Momin. The informant in his Fard-beyan named that the appellants of Cr. Appeal No. 293 of 2001 assaulted Sattar Mian, Zuneb Ansari and Rahamtullah Momin, resulting their death. But in course or evidence, informant Rajjak Ansari (PW 4) has deposed that the Santhals assembled and went to the Mukhia. When the Mukhia Madhusudan Datta, appellant in Cr. Appeal No. 277 of 2001, gave hint, the Santhals started assaulting the Muslims, resulting death of three persons and causing injuries to four persons, including the informant. The informant has admitted that he had one to jail along with others in a case, instituted against him and other Muslims regarding slaughtering the cows in an open place on the information, given by appellant Madhusudan Datta. PW 6 Mustkim Ansari has not named any of the Santhals, including the appellants. There is general allegation that appellant Madhusudan Datta led the Santhals, who assaulted the Muslims resulting death of three persons and injuries to three others. He also admits that Mukhia had filed a case against him and others. He claimed that only one Santhal beat the drum but in court he pointed out that all the three appellants of Cr. Appeal No. 293 of 2001 were present in the mob. Contradicting this statement, PW 7 Md. Saiyad Ali Ansari claimed that the Santhals went to the Mukhia Madhusudan Datta, beating the drums. Thereafter, they started assaulting the Muslims at Logai market, causing injury to Md. Shahid Momin, Md. Shyam Nooreman Momin, Md. Asraf Ali and the informant Md. Rajjak. The doctor did not give any injury report in respect of the informant Md. Rajjak, which falsified the statement of the informant himself that he was also assaulted and sustained injuries. This witness (PW 7) has deposed that Madhusudan Datta was leading the mob of the Santhals. There was no assault at the hill top rather 50 to 100 Santhals were beating the drums in the market. Rajjak, which falsified the statement of the informant himself that he was also assaulted and sustained injuries. This witness (PW 7) has deposed that Madhusudan Datta was leading the mob of the Santhals. There was no assault at the hill top rather 50 to 100 Santhals were beating the drums in the market. Again the presence of Madhusudan Datta has been belied by the evidence of PW 8 Md. Asraf Ali, who has deposed that he came alone on a motorcycle and thereafter, he called the Santhals, who went to him beating the drums and started assaulting the Muslims. He claimed that he was also assaulted but there is no injury report to show his injuries. He claimed to have identified appellant Madhusudan Datta in the dock in course of his evidence but he has not named him in course of his statement recorded under Section 161 Cr. P.C. He has further deposed that he (PW 8) and his father Sattar were assaulted at a distance of 500 yards from Logai Market. The drum beaters had not gone to the hill where beef was being sold by the Muslims. PW 9 Kalamtullah Mian has deposed that the son of Ganga Paharia beat the drum. The Santhals armed with axe, bows, arrows, Lathi, Farsa etc. assembled and went to the appellant Madhusudan Datta. Thereafter, they started assaulting the Muslims. Out of fear all the Muslims fled away. He did not name any of the assailant including these appellants of Cr. Appeal No. 293 of 2001. The case of the prosecution is further belied that PW 10 Sarfuddin has clearly deposed that he could not identify any of the Santhals/assailants and is a hostile witness. There is general allegation in the deposition of PW 11 Shahid Momin, PW 12 Rajjak Ansari, PW 13 Ainul Momin, PW 14 Noor Islam, PW 15 Wasir Mian and PW 16 Riznul Momin that Santhals came beating drums from the house of Madhusudan Datta. They started assaulting Muslims. They have contradicted as to whether only one Santhal (appellant Rugna Hasda) first went to Madhusudan Datta and thereafter beating the drum he gave a round of Logai market and then the Santhals assembled and went to Madhusudan Datta. On his instigation, the Santhals started assaulting the Muslims, causing death of three persons and causing injuries to other three Muslims. 14. On his instigation, the Santhals started assaulting the Muslims, causing death of three persons and causing injuries to other three Muslims. 14. The appellants have not denied the death of Zuneb Ali, Rahamtullah Momin and Abdul Sattar. PWs 1 and 2, namely, Dr. Mahesh Prasad and Dr. Alakh Kumar Mandai respectively conducted autopsy and found incised wounds, swelling, fracture, lacerated wounds and abrasions on their dead bodies, caused by sharp cutting weapons within 12 to 24 hours from the time of post-mortem examination on 27.10.1994 and 28.10.1994. The Post Mortem Reports are Exts. 1, 2 and 3 in respect of the three deceased. The appellants have denied their participation in assaulting these deceased. Hence I do no think it necessary to discuss the injuries found on the dead bodies, which were ante-mortem in nature, as there is vague allegation against the Santhals. There is no definite allegation against these appellants of Cr. Appeal No. 293 of 2001 as to who assaulted whom and what was the means of assault. Thus, the manner of the alleged assault has also not been brought on record. 15. Appellant Madhusudan Datta in Cr. Appeal No. 277 of 2001 has been convicted and sentenc8d with the aid of Section 109 I.P.C. I have already discussed above that there is contradictory statements of the eye witnesses regarding presence of this appellant in his shop when appellant Rugna Hasda went to him, beating a drum and gave a round of the market. The interested witnesses who claimed to be present at the market have deposed that Madhusudan Datta came on a motorcycle and went to his shop where his son was sitting. In a nearby tea stall, the Santhals assembled and on his instigation they started assaulting. There is no evidence that he led the mob and who heard Madhusudan Datta instigating the Santhals. Learned counsel for the appellants on this point has relied a case, reported in A.I.R. 1974 SC 45 (Jainual Haque vs. State of Bihar) and AIR. In a nearby tea stall, the Santhals assembled and on his instigation they started assaulting. There is no evidence that he led the mob and who heard Madhusudan Datta instigating the Santhals. Learned counsel for the appellants on this point has relied a case, reported in A.I.R. 1974 SC 45 (Jainual Haque vs. State of Bihar) and AIR. 1975 SC 175 (Sri Ram vs. State of Uttar Pradesh), wherein, it has been held that "whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid he doing of that act." Thus, in order to constitute abetment the abetter must be shown to have intentionally aided the commission of the crime. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee but unless the invitation was extended with intent to facilitate the commission of murder, the person inviting can not be said to have abetted the murder. It is not enough that an act on the part of the alleged abetter happens to facilitate the commission of crime. 16. On perusal of the evidence of the eye witnesses I find that there is clear discrepancy in between the evidence of the witnesses, given at the trial and the version given in the First Information Report regarding the part played by appellants in both the appeals. In the Fardbeyan informant Rajjak Ansari (PW 4) has reported that appellant Madhusudan Datta instigated the appellants of Cr. Appeal No. 293 of 2001 and other Santhals to assault the Muslims while according to the evidence, adduced by them in course of trial, they have deposed that Madhusudan Datta led the mob of the Santhals and he also actually joined in assaulting the Muslims. It was a market day at Logai Hatia. Madhusudan Datta has got his shop at Logai market. The others had also their shops in the market. PW4 Rajjak Ansari had also gone to market, who claims to have heard the Santhals being instigated by Madhusudan Datta, which is not possible to be heard from a far distance as he was standing 20 ft. away from the shop of Madhusudan Datta towards the west of the market. He himself is facing trial in a murder case. PW4 Rajjak Ansari had also gone to market, who claims to have heard the Santhals being instigated by Madhusudan Datta, which is not possible to be heard from a far distance as he was standing 20 ft. away from the shop of Madhusudan Datta towards the west of the market. He himself is facing trial in a murder case. By the side of Logai Hatia, there is a pitch road and towards west there is a hill where cows are slaughtered. PW 6 Md. Mustkim Ansari was at his shop at the time of the alleged occurrence. He claims to have seen the Santhals going to the shop of Madhusudan Datta and on his instigation, the Santhals started assaulting the Muslims. But he does not know as to whether any Loot-Pat took place at Logai Hatia. He has deposed that only one Santhal was beating drum. He has not disclosed the names of the appellants of Cr. Appeal No. 293 of 2001 rather he indicated them in course of evidence in court that they were also amongst the Santhals. PW 7 Md. Saiyad Ali Ansari has deposed that no cow was being slaughtered on the hill. On beating drum, 50 to 100 Santhals went at Hatia and later on about 100 persons were in the mob. Madhusudan Datta (appellant in Cr. Appeal No. 277 of 2001) called the Santhals, who beat the drum and started assaulting the Muslims. He has deposed that Madhusudan Datta just had come to Hatia on a motorcycle and went to a tea stall. This statement belies the statements of other witnesses that Madhusudan Datta was in his shop where the Santhals went and on his instigation the Santhals including the appellants in Cr. Appeal No. 293 of 2001 assaulted the Muslims, resulting three deaths and causing injuries to others. As this witness has not supported the prosecution case so he has been declared hostile by the prosecution. PW 12 out of fear when Maar-Pit took place, fled away, who was in the market selling biscuits towards east of the hill. Even then he has deposed that from that place he heard appellant Madhusudan Datta giving orders to the Santhals which can not be relied upon. He has specifically deposed that in the mob he could not identify any of the Santhals/assailants. Even then he has deposed that from that place he heard appellant Madhusudan Datta giving orders to the Santhals which can not be relied upon. He has specifically deposed that in the mob he could not identify any of the Santhals/assailants. He has not deposed that Madhusudan Datta led the Santhais rather the Santhals came from the shop of Madhusudan Datta and started assaulting the Santhals. The Santhals had not gone to the hill informing Madhusudan Datta. At the market Logai no dead body was found rather it was found at a distance of 1/2 Km. or 100 yards away from Logai Market. There is no evidence that who chased and assaulted Sattar Mian, Zuneb Ansari and Rahamtullall Momin, resulting their deaths. 17. When considered all these evidence of the interested witnesses, I find that the evidence in respect of assault, given by the appellants of Cr. Appeal No. 293 of 2001 at the instigation of appellant Madhusaudan Datta in Cr. Appeal No. 277 of 2001 is not clear, cogent and reliable. There is delay in sending the First Information Report, which could to be explained due to non-examination of the I.O. In this case the delay in sending the F.I.R. is of five days. In the Fard-beyan there is no specific allegation as to who assaulted whom and by what means. Admittedly there is enmity in between appellant Madhusudan Datta of Cr. Appeal No. 277 of 2001 as he had informed the police, resulting institution of a case in which Muslims has gone to jail custody. Appellant Madhusudan Datta has alleged that the Muslims slaughter cows in open place and on the market day they sell beef. Due to this criminal case against the Muslims, appellant Madhusudan Datta has been dragged alleging that he abetted the Santhals in looting them at hill, where they were selling beef. The I.O. has not been examined in this case, who would have explained the delay in sending the F.I.R. to the Court after five days of the alleged occurrence. Under such circumstances, I find that the prosecution got sufficient time to introduce improvement and embellishment and set up a distorted version of the occurrence. The evidence of the witnesses is full of doubt, which is an afterthought, due to enmity with appellant Madhusudan Datta (Mukhia), who used to inform the police regarding cow slaughtering in an open place on market day. The evidence of the witnesses is full of doubt, which is an afterthought, due to enmity with appellant Madhusudan Datta (Mukhia), who used to inform the police regarding cow slaughtering in an open place on market day. The learned counsel for the appellants on this point has relied cases, reported in A.I.R. 1976 SC 2476 SC 2423 (Ishwar Singh vs. State of Uttar Pradesh) and 2002(2) J.L.J.R. (SC) 134 (Bijoy Singh & Am. VS. State of Bihar), in which it has been held that "The extra-ordinary delay in sending the First Information Report is a circumstance, which provides a legitimate basis for suspecting that the First Information Report was recorded much later than the stated date and rather affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence." 18. In the present case, there is conthdictory statement in the evidences of the eye witnesses as to whether one Santhal Rugna alone went to the Mukhia Madhusudan Dutta, beating the drum and gave round of the Logai Market. On the other hand, the other witnesses have deposed that a large number of Santhals numbering 70 to 80 assembled and started assaulting the Muslims in the market itself whereas three dead bodies were found half Kilometre away from the market. There is no such averment that the Santhals chased and assaulted three Muslims at a distance of half Kilometre away from the market resulting their deaths. This evidence, which has come in course of trial of the witnesses, have not been stated before the I.O. in course of investigation under Section 161 Cr. P.C. The appellants could not take contradictions of the evidence of the witnesses with the statements, earlier made before the I.O., causing great prejudice to them. Learned counsel for the appellants on this point has relied a case reported in 1999 (2) P.L.J.R. (SC) 69 (Ahmad Bin Salam vs. State of Andhra Pradesh). 19. When considered the evidence of the prosecution witnesses, I find that there are discrepancies in the evidence contradicting the First Information Report. The place of occurrence where Shyam Nooreman, Shahid Momin and Saiyad were assaulted, who sustained injuries on their person and the other three deceased Zuneb Ansari, Rahamtullah Momin and Abdul Sattar, who succumbed to their injuries due to assault, has not been proved. The place of occurrence where Shyam Nooreman, Shahid Momin and Saiyad were assaulted, who sustained injuries on their person and the other three deceased Zuneb Ansari, Rahamtullah Momin and Abdul Sattar, who succumbed to their injuries due to assault, has not been proved. There is unexplained delay of five days in sending the First Information Report to the nearest Magistrate. Non-examination of the I.O. has caused prejudice as no contradiction of statements could be taken in evidence of the prosecution witnesses, who have improved the prosecution case in course of their deposition in court, giving improvement in their earlier statement, recorded under Section 161 Cr. P.C. The enmity is admitted in between the parties. The appellants in Cr. Appeal No. 293 of 2001 who have been convicted under Section 392/ 149 of the Indian Penal Code have not been named in the First Information Report nor there is any specific allegation of assault, resulting the death of three Muslims and sustaining injuries by three Muslims, besides the informant. Due to enmity having personal grudge against appellant Madhusudan Dutta, he has been dragged under Section 109 I.P.C. that he instigated the Santhals to assault the Muslims in the Market. The manner of the alleged occurrence has also not been proved by the prosecution witnesses. The learned Additional Sessions Judge, Sahibganj, has not considered these aspects while evaluating the evidence of the alleged eyewitnesses. It was market day and there is contradictory statement as to whether appellant Madhusudan Datta was in his shop situated at the market. The eye witnesses have deposed that he gave a round leading the Santhals, who assaulted the Muslims in the market. The witnesses have contradicted that he had come to market on a motorcycle and went to a nearby tea stall where Santhals went and met him. Thereafter, the Santhals started beating drums and started assaulting the Muslims. Thus, I find that Madhusudan Datta has been robbed (sic-roped?) under Section 302/109 of the Indian Penal Code only due to previous enmity as he had instituted a criminal case against the Muslims in which the Muslims had been remanded to jail custody. Due to non-examination of the I.O., place of occurrence could not be established. There are contradictory statements as to whether the Santhals had gone to the hill and assaulted the Muslims by looting them. Due to non-examination of the I.O., place of occurrence could not be established. There are contradictory statements as to whether the Santhals had gone to the hill and assaulted the Muslims by looting them. In a market day, when there was a mob, it is improbable that the witnesses heard Madhusudan Datta instigatihg Santhals. Appellants in Cr. Appeal No. 293 of 2001 have not been named, alleging that they played active role in assaulting the Muslims or they were the person, who beat the drum. The evidence is that all the Santhals beat the drum whereas in the Fard-beyan it is only Rugna Hansda, who beat the drum. On beating of drum, 70 to 80 or in between 50 to 100 Santhals assembled and assaulted the Muslims in the Logai Market. But the dead bodies of Zuneb Ali, Rahamtullah Momin and Abdul Sattar were found half kilometre away from the market Logai. Thus, the manner of the alleged occurrence and the place of occurrence and who amongst the Santhals assaulted the deceased and injured, have not been proved by the prosecution. The learned court below has erroneously relied the contradictory evidence of the alleged eye witnesses, which can not be sustained. 20. In the result, I find merit in both the Criminal Appeals, which are allowed and the impugned judgment and order of conviction and sentence, passed by the learned Additional Sessions Judge, Sahebganj, in Sessions Trial No. 129 of 1995, is hereby set aside. As the appellants in both the Criminal Appeals are in custody, they are ordered to be released forthwith from the custody, if not wanted in any other case. S. J. Mukhopadhaya, J.-I agree.