JUDGMENT: GIRISH CHANDRA GUPTA, J. (1) THESE two appeals arise out of a judgment dated 17th February, 2004, and an order dated 19th February, 2004 passed by the learned Additional Sessions Judge, Fast Track Court-1, Krishnagar, district - Nadia in Sessions Trial No. III of December, 2003 arising out of sessions Case No. 2 (10) 2003 convicting 8 (eight) appellants in all under section 302 of the Indian Penal Code read with section 34 thereof. By the order dated 19th February, 2004, all the appellants were sentenced to life imprisonment together with fine of Rs. 5,000/- each, in default to suffer further rigorous imprisonment for one year each. (2) C. R. A. No. 155 of 2004 has been preferred by Sadananda Mondal. C. R. A. No. 166 of 2004 has been preferred by Mahitosh Mondal, Brojen Mondal, manoj Mondal, Newton Mondal, Sukhen Mondal, Dilip Tarafdar and biswanath Mondal. All these 7 (seven) appellants were enlarged on bail by an order dated 6th April, 2004, passed by a Division Bench of this Court. The appellant, Sadananda Mondal in CRA No. 155 of 2004, was subsequently enlarged on bail by an order dated 28th March, 2005. (3) THE prosecution case briefly stated is that on 14th January, 2002, there was a picnic held in the kash field. In the picnic the participants quarrelled between themselves which, however, was resolved through the mediation of well-meaning persons. When the participants were coming back, Bharat mondal was shot at by the accused Sadananda being aided and abetted by others. It appears that 14 (fourteen) persons were charge-sheeted. Six of them were acquitted by the learned Trial Court. Eight of them have been convicted. At their instance, these two appeals were filed more fully stated hereinabove. (4) BEFORE we proceed to consider the submissions advanced by the learned advocates, appearing for the appellants, and the learned Public Prosecutor, appearing for the State/respondent we would like to analyse the evidence adduced by the prosecution. (5) THE de facto complainant Avik Mondal, P. W. 1, deposed as follows: "the incident took place on the Sankranti day of Pous in the year 2001 a. D. around 4 to 4. 30 p. m. Bharat Mondal was returning from picnic along the village road. (5) THE de facto complainant Avik Mondal, P. W. 1, deposed as follows: "the incident took place on the Sankranti day of Pous in the year 2001 a. D. around 4 to 4. 30 p. m. Bharat Mondal was returning from picnic along the village road. When he reached near the house of accused Sadananda mondal then the accused Sukhen Mondal, Biswanath Mondal, Mahitosh biswas, Brojen Mondal, Manoj Mondal, Sadananda Mondal and Newton mondal stood in front of their respective houses. I was following Bharat and I was about ten cubits behind him. At first accused Sadananda Mondal fired a shot from a gun in Bharat and a bullet hit him on his chest near the lungs and he fell down. After Bharat fell down accused Brojen Mondal pulled him by catching his legs. I lifted Bharat with the help of some villagers namely Badal, Tapan, Madan Mondal, Prasun Biswas, Madhu ghosh, Paritosh Mondal and others from there and took him to Berhampore hospital by a jeep and he was admitted there. He succumbed to his injuries and died at about 8 hrs. on the following morning. The accused persons whom I named are present in Court today (identified the accused on dock). " (6) IT has also come on the record from the evidence of the P. W. 1 that the accused Sadananda Mondal is the next-door neighbour of the deceased. (7) P. W. 2, Prasun Biswas, turned hostile. He, however, deposed that the incident had taken place near his house. He heard the sound of bomb explosion. (8) P. W. 3, Badal Mondal, another younger brother of the deceased, deposed as follows: "I was returning from field. I saw that accused Sukhen Mondal and mahitosh Mondal restrained Bharat in front of the house of Sadananda mondal and Sadananda fired a shot at Bharat with a fire-arm below his chest. Seeing that I was frightened and I fled away towards home. "He, however, admitted during his cross-examination that the evidence, which he gave in Court, was not disclosed earlier. (9) P. W. 12, Investigating Officer, admitted in his cross-examination that the P. W. 3 had not been examined by him. (10) P. W. 6, Amit Mondal, deposed that between 4. 00 p. m. and 4. 30 p. m. the accused, Sadananda Mondal, had killed Bharat Mondal by firing a gun shot. (9) P. W. 12, Investigating Officer, admitted in his cross-examination that the P. W. 3 had not been examined by him. (10) P. W. 6, Amit Mondal, deposed that between 4. 00 p. m. and 4. 30 p. m. the accused, Sadananda Mondal, had killed Bharat Mondal by firing a gun shot. He further deposed that the rest of the appellants had restrained the deceased while he was returning home. The Investigating Officer, P. W. 12, deposed as follows: "p. W. 6 Bhowmick Mondal did not state before me that Bharat went to picnic and he also attended the picnic and that he was returning from picnic at that time and that Sadananda fired at Bharat. " Therefore, the evidence of P. W. 6 does not inspire any confidence. (11) P. W. 7, Shyamal Shah, deposed as follows : "in the year 2002 on the day of Poushalla around 4 to 4. 30 p. m. I stood on the roadside near the house of Santosh Mondal. I saw Bharat Mondal, P. W. I, Paritosh Mondal and a few others were returning from western field side. Brojen Mondal and Mahitosh Mondal caught hold of Bharat mondal in front of the house of Santosh Mondal, father of accused sadananda Mondal. Then Sadananda came out from his house and fired a shot from a firearm to Bharat Mondal. Bharat was hit by the bullet at his lungs and he fell down. Seeing that I fled away to my house. " (12) THE Investigating Officer, P. W. 12, in his cross-examination admitted that P. W. 7 in his examination under section 161 of the Code of Criminal procedure had not told him that Mohitosh and Brojen had caught hold of the deceased Bharat. Therefore, the evidence of P. W. 7, insofar as the same is directed against the accused Sadananda, has remained unshaken. (13) P. W. 9, Paritosh Mondal, deposed that he witnessed the incident while he was returning from the feast. He added that Sadananda had fired at the deceased whereas Mohitosh, Brojen and Monoj had caught hold of Bharat. The evidence of P. W. 9 is not believable for the simple reason that he was present at the time when the inquest was held. He, as a matter of fact, was a signatory to the inquest report. He added that Sadananda had fired at the deceased whereas Mohitosh, Brojen and Monoj had caught hold of Bharat. The evidence of P. W. 9 is not believable for the simple reason that he was present at the time when the inquest was held. He, as a matter of fact, was a signatory to the inquest report. The inquest report is Exhibit 3 which contains the following recital: "it is revealed from the primary investigation that on last 14.1.02 between 5 p.m. and 5. 30 p.m. a bone of contention was made with the villagers. Then the relatives of the deceased have heard the sound of two firings one after another, then the bullet struck on the right belly of the deceased and he fell down on the ground being injured with blood. And the people of the house brought him to the Berhampur General Hospital at once and admitted him at 7 a. m. in the evening. But that person passed away today i.e. on 15.1.02 at 7.15 a. m. in the morning. " (14) IF P.W. 9, Paritosh, had really witnessed the incident, it is only natural that he would have disclosed the name of the assailant and the persons, who had aided and abetted him. Moreover, the Investigating Officer, P.W. 12, in his cross-examination admitted that the P. W. 9 in his examination under section 161 of the Code of Criminal Procedure did not tell him that he had seen Sadananda firing a shot at the deceased Bharat. He did not also tell him that Sadananda was aided and abetted by the other accused persons. It is, therefore, difficult to believe the evidence of P. W. 9. (15) THE autopsy surgeon, P. W. 2, deposed as follows: "on examination I found- rigor mortis present. I also found burn marks around a hole of 1" x 1" on the left chest lower end of the back in the lateral border. Plura and lung were lacerated and haemothrax (both sides of the lungs were full of blood.)The liver was lacerated and blood clots were found inside. Small intestine was found to be repaired by surgeon. In my opinion, death was due to gun shot injury leading to shock which was ante-mortem and homicidal in nature. " (16) THE post-mortem report prepared by the P. W. 2 has been marked exhibit 5. Small intestine was found to be repaired by surgeon. In my opinion, death was due to gun shot injury leading to shock which was ante-mortem and homicidal in nature. " (16) THE post-mortem report prepared by the P. W. 2 has been marked exhibit 5. (17) THE evidence discussed above goes to establish that- (a) on 14th January, 2002, around 5 p. m, the victim Bharat was shot at by the accused Sadananda. (b) The victim was shifted to Berhampore General Hospital. He died on 15th January, 2002 at 7. 15 a.m. in the morning, (c) P. W. 1, the de facto complainant, in his written complaint, did not allege a word as regards any involvement of the rest of the appellants. The de facto complainant in his evidence, quoted above, has hardly deposed anything which may even suggest that the rest of the appellants in any way aided or abetted the crime. (18) P. W. 2 turned hostile. He may have corroborated the fact that the incident took place but he has not involved any of the appellants. (19) P. W. 3 in his deposition has, in fact, referred to the active part played by Sukhen Mondal and Mohitosh, but the evidence as regards the part allegedly played by them is far from clear. The evidence of P. W. 6 as regards the part played by the rest of the appellants not convincing because the P. W. 6 during his examination under section 161 of the Cr. PC did not implicate them. Similarly, the evidence of P. W. 7 implicating the appellants, Brojen and mohitosh, is weak because it had not been earlier disclosed before the investigating Officer during examination under section 161 of the Code of criminal Procedure. The same is also true as regards the evidence of P. W. 9. (20) WE are, in the circumstances, of the opinion that the evidence as against the appellants, Mohitosh Mondal and others, in C. R. A. No. 166 of 2004 is weak, to say the least. (21) MR. Basu, the learned Advocate, appearing on behalf of the appellant, sadananda Mondal, in C. R. A. No. 155 of 2004, submitted that narration of the incident given by the de facto complainant, P. W. 1 in Court, is different from the narration stated in the written complaint. (21) MR. Basu, the learned Advocate, appearing on behalf of the appellant, sadananda Mondal, in C. R. A. No. 155 of 2004, submitted that narration of the incident given by the de facto complainant, P. W. 1 in Court, is different from the narration stated in the written complaint. It is certainly different insofar as the P. W. 1 in his evidence in Court has sought to implicate the appellants in CRA No. 166 of 2004; but insofar as the narration of the incident involving appellant Sadananda Mondal is concerned, we are convinced that there is no improvement made in Court. (22) MR. Basu has also criticized the evidence of P. W. 3 which we think is justified. Mr. Basu added that the medical documents should have been produced in Court. The prosecution by omitting to produce those documents has deprived the Court to ascertain the dimension of the injury and the treatment provided. There may be some substance in the submission of Mr. Basu, but there can be no doubt that the injury inflicted by the accused sadananda was fatal. The victim died within hours. The fact that the victim died of a gun- shot injury has been adequately proved. Absence of the medical documents cannot in any event bring the case within the four-corners of section 114 (g) of the Evidence Act. We, therefore, are not in a position to attach great significance to this omission. Lastly, it was urged by Mr. Basu that in the written complaint fathers name of the accused Sadananda has been stated as Narugopal whereas it would appear from the chargesheet and all other documents that the name of the father of the accused Sadananda is santosh. It is true that this mistake has been committed by the P. W. 1, the de facto complainant, but surprisingly not a word on this aspect was asked in cross-examination while P. W. 1 was in the box. Mr. Basu has not been able to show that any prejudice was caused to his client Sadananda Mondal by this misdescription. Sadananda Mondal happens to be the next-door neighbour of the P.W. 1, which he has stated in his evidence, and there is no cross-examination on that nor is there any denial as to the correctness of the aforesaid fact. We are, in the circumstances, unable to attach any importance to this misdescription. Sadananda Mondal happens to be the next-door neighbour of the P.W. 1, which he has stated in his evidence, and there is no cross-examination on that nor is there any denial as to the correctness of the aforesaid fact. We are, in the circumstances, unable to attach any importance to this misdescription. No other submissions were advanced by Mr. Basu. (23) MR. Sadhan Kumar Haider, the learned Advocate, appearing in support of the appeal C. R. A. No. 166 of 2004, submitted that except for the accused sadananda Mondal, no other accused persons were named in the written complaint. The other persons were involved subsequently by way of an afterthought. He submitted that the P. W. 3 did not in his examination under section 161 of the Cr. PC state anything as regards involvement of the appellants in C. R. A. No. 166 of 2004. With regard to the evidence of the p. W. 6, he submitted that he possibly was not present at the place of occurrence. Concerning the evidence of P. W. 7, he submitted that this witness did not involve the appellants in Criminal Appeal No. 166 of 2004 which, in our view, is not a correct thing to say. May be that the evidence of the p. W. 7, as regards the involvement of the appellants in C. R. A. No. 166 of 2004, is weak. Some criticism as regards the evidence of P. W. 9 was made by Mr. Haider in respect whereof our views are also the same. (24) MR. Goswami, the learned Public Prosecutor, submitted that the case against the accused Sadananda has been established beyond any reasonable doubt. As regards the involvement of the appellants in C. R. A. No. 166 of 2004 has to be considered on the basis of the evidence. (25) CONSIDERING the evidence adduced, both oral and documentary, and the submissions made by the learned Advocates, appearing for the parties, we are of the view that the learned Trial Court erred in convicting the appellants in C. R. A. No. 166 of 2004. Accordingly, we set aside the order of conviction and sentence passed against the appellants namely Mohitosh mondal, Newton Mondal, Brojen Mondal, Sukhen Mondal, Dilip Tarafdar and Biswanath Mondal and direct their acquittal. The conviction recorded and the sentence imposed upon the appellant Sadananda are, however, well founded and are confirmed. Accordingly, we set aside the order of conviction and sentence passed against the appellants namely Mohitosh mondal, Newton Mondal, Brojen Mondal, Sukhen Mondal, Dilip Tarafdar and Biswanath Mondal and direct their acquittal. The conviction recorded and the sentence imposed upon the appellant Sadananda are, however, well founded and are confirmed. (26) IN the result, the appeal, being C. R. A. No 166 of 2004, is allowed. As regards the appeal being C. R. A. 155 of 2004, the same is, however, dismissed. (27) THE appellant, Sadananda Mondal is on bail. He is directed to surrender within a fortnight before the learned Trial Court and to serve out the remaining part of his sentence. The bail granted to him by the order dated 28th March, 2005 is cancelled. (28) THE appellants Mahitosh Mondal, Brojen Mondal, Manoj Mondal, newton Mondal, Sukhen Mondal, Dilip Tarafdar and Biswanath Mondal in c. R. A. No. 166 of 2004 are discharged of their liabilities under the bail bonds furnished by them. (29) LET a copy of this judgment along with the Lower Court Records be forthwith remitted to the learned Trial Court for information and necessary action. (30) UGENT xerox certified copy of this judgment, if applied for, be delivered to the learned Advocate for the parties upon compliance of all formalities.