Judgment Girish Chandra Gupta, J. Both the death reference and the appeal arose out of a judgment dated 14th March, 2007, passed by the learned Additional District and Sessions Judge, Fast Track Court, Jhargram, in Sessions Trial Case No. XX/November/2006 convicting the accused Bhuddadeb under section 302/120B of the Indian Penal Code, and acquitting four other accused persons and an order dated 22nd March, 2007, by which the convict was sentenced to death. The convict has come up in appeal. The death reference has also been placed before us. Both the appeal and the reference have been heard together and this judgment will govern both the appeal and the reference. 2. The facts and circumstances of the case briefly stated are that on 26th May, 2006, Snehasis, a local leader of the ruling political party, was killed by a heavy sharp-cutting weapon as well as by firearms. Another member of the ruling party was injured. The deceased and the injured were talking together accompanied by five others at about 7.00 p.m. in the evening when the incident happened. 3. Twelve persons were charge-sheeted. Seven of them absconded. Five of them were charged. Four of them have been acquitted. The appellant has been convicted. 4. Mr. Joymalya Bagchi, the learned Advocate, appearing in support of the appeal, submitted that the conviction cannot be sustained. 5. Mr. Goswami, the learned Public Prosecutor, submitted that the prosecution has proved its case well and there is no reason why this Court should interfere. He invited us to confirm the sentence passed by the learned Trial Court. 6. The reasoning, for the conviction, advanced by the learned Trial Court is as follows : "Now, let us come again in the case. The evidence on record has already been discussed. Ignoring minor discrepancies as per principle of law mentioned hereinbefore and as per law laid down in AIR 1973 SC 2622 (Shiuaji Sahebrao) case, the story of prosecution is established. That on 26.5.06, accused Buddhadeb Giri, Losso Hembram, Paresh Dhal and Dilip Das were found beside 'Kansai' Ghat by Sudam Tapas Dutta. After that at the evening after sunset and before darkness the four persons came before Pulak's shop, wherein deceased and others sat. Accd. Buddhadeb Giri made stroke twice on head of Snehashis, whereas accd. Losso Hembram shot at stomach. The witnesses only witnessed the incident. After that at the evening after sunset and before darkness the four persons came before Pulak's shop, wherein deceased and others sat. Accd. Buddhadeb Giri made stroke twice on head of Snehashis, whereas accd. Losso Hembram shot at stomach. The witnesses only witnessed the incident. Dilip and Paresh threatened the witnesses and others not to make adventure, otherwise they would face dire consequences. Then they fled away P.W.2 Muchiram chased, and was assaulted by Losso Hembram. Timir then rescued him. P.W.2 was treated at hospital, wherein Snehashis died. The axe has not been recovered. So, as per evidence on record, it is the four accused who made conspiracy to cause death of Snehashis. It is Buddhadeb Giri who made two stroke on volt of head, which is sufficient to cause death. Later on, Losso Hembram hot at the stomach of Snehashis Das. Doctor's opinion is that the injury on head is sufficient to cause death. The bullet is also sufficient to cause death. But fact remains Buddhadeb Giri made two stroke on head with axe, that two stroke are sufficient to cause death. Losso Hembram is not facing trial, he is absconded. Dilip and Paresh Dhal are also absconded. During examination of accused under section 313 Cr. P.C. Buddhadeb Giri did not say anything. He kept mum. So after considering evidence of eye-witnesses and injured, this Court is convinced that charge under section 302/120B IPC against this accused Buddhadeb Giri is proved beyond reasonable doubt. The accused Buddhadeb Giri caused death of Snehashis by striking on head twice. The accused Buddhadeb Giri made conspiracy with other (absconders) to kill Snehashis Das. So, after considering the materials on record, which proves guilt of the accused Buddhadeb Giri for committing offence punishable under section 302/120B IPC. Hence, other four accused Somnath Mondal, Sentu Giri. Pijus and Tamal Das are acquitted, whose names have not been used by anyone of witnesses." 7. It would appear that the learned Trial Judge arrived at a two-fold finding: (a) The appellant caused the death of the deceased Snehashis. (b) The appellant conspired with others to kill the deceased Snehashis. 8. After hearing the learned Advocates and considering the evidence in great detail, we are of the view that both the findings are open to serious objection. We shall briefly discuss our reasons with regard to the first finding: (a) Seven persons were sitting together. (b) The appellant conspired with others to kill the deceased Snehashis. 8. After hearing the learned Advocates and considering the evidence in great detail, we are of the view that both the findings are open to serious objection. We shall briefly discuss our reasons with regard to the first finding: (a) Seven persons were sitting together. These seven included the deceased Snehashis and the injured Muchiram. It was evening around 7 O'clock. There was electricity. The assailants deposed to by the witnesses are all known persons as also residents of the same locality. In this background it is difficult to conceive that 'X' saw 'A' killing the deceased whereas 'Y' saw 'B' killing the deceased. This exactly is the case herein. 9. Out of seven persons gossiping together Snehashis was killed. The balance six persons have deposed on behalf of the prosecution and they are P.Ws.1, 2, 7, 9, 11 and 13. All these six witness have deposed that the killer was Buddhadeb, the appellant. Dilip Das is an absconder. Losso Hembram is another absconder and Paresh Dhal is also absonder. These are the persons named in the FIR filed almost 20 hours after the incident. All the six witnesses have consistently from the witness box deposed that these were the four persons involved in committing the murder of Snehashis. A discordant note was however struck by some of these witness on earlier occasions when the entire incident was fresh in their mind and before there was time and scope for any concoction: (i) The injured witness viz. P.W.2 in his cross-examination admitted "I did not say name of the assailant to doctor." (ii) P.W. 9, another eye-witness, more than sixteen hours after the incident had told the Electronic Medias viz. ETV and Aakash Bangla that Maobadis had killed Snehashis. To be precise, the relevant portion of the evidence of the P.W. 9 reads as follows: "I know Jadunath Bera and Asit Das. I told to E.TV and Akash Bangla on 26.5.06 just after the incident. Question: Did you tell before those media that Maobadi killed Snehashis? Answer: The witness states he is unable to recollect what he has said before them. Question: You have told before E.TV and Aakash Bangla on 27.5.06 at 11 a.m. that Snehashis has been murdered by Maobadi. Is it true? Question: Did you tell before those media that Maobadi killed Snehashis? Answer: The witness states he is unable to recollect what he has said before them. Question: You have told before E.TV and Aakash Bangla on 27.5.06 at 11 a.m. that Snehashis has been murdered by Maobadi. Is it true? Answer: I had really meant these four persons when I stated that militant Maobadis had killed. Question: You have not disclosed the names of those four persons or anyone. It is true? Answer: I did not tell names of those four persons to the media on that date or not any persons i.e. names of the four persons as stated by me i.e. name of Buddhadeb, Losso, Dilip Paresh or any other name till 11 a.m. on 27.5.06." It has been admitted by P.W. 2 one of the so-called eyewitnesses that "Accused Buddhadeb Giri belongs to rival party i.e. Jharkhand Party". (iii) Similarly another eye-witness, namely P.W. 11, has admitted in cross-examination that Buddhadeb was supporter of Jharkhand Party. The appellant was a member of the Jharkhand Party to the knowledge of the eye-witnesses. It is difficult to believe that the P.W. 9 could have mistaken him as a militant or a Maobadi. The explanation given by him, when he found himself in difficulty during cross-examination, is not at all believable. As a matter of fact, the P.W.12, widow of the deceased Snehashis, was herself in doubt as to the identity of the actual assailant. After her evidence was over, she told the learned Trial Judge "Sir whoever may have killed my husband, he should be punished." (iv) The attending doctor Kausik Das attached to Jhargram S.D. Hospital who had examined both Snehashis and Muchiram deposed that no statement was made by Snehashis either to him or Emergency Medical Officer. He further admitted that the deceased at that point of time was conscious. His evidence in this regard may be noticed in extenso: "In chest wall 12 pair of ribs. 12 thorasai vertibra. Vertebra has not been injured by bullet. I did not put signature or mark over that bullet. I noticed one injury on later chest back portion. I found one injury on the middle of the "Volt" i.e. middle of head. There was no other abrasion injury, when patient was brought conscious. At first patient was taken to emergency medical office. Vertebra has not been injured by bullet. I did not put signature or mark over that bullet. I noticed one injury on later chest back portion. I found one injury on the middle of the "Volt" i.e. middle of head. There was no other abrasion injury, when patient was brought conscious. At first patient was taken to emergency medical office. To E.M.O. no statement was made by Snehashis nor before me. Regarding head injury there is no mention of other weapons or of bullet. Muchiram did not make any statement regarding reason of injury. Injury may be caused by hard or blunt or lathi weapons." 10. The written complaint was lodged almost 20 hours after the incident had taken place. This coupled with the infirmity discussed above casts a serious doubt as to the identity of the actual assailant. The doubt is reinforced by the following circumstances. 11. P.W. 19, Nanigopal Dutta, Sub-Inspector of Police. Kotwali P.S., deposed that he received a telephonic message on 26th May, 2006 which was diarised by him and the same has been marked Exhibit 8. Exhibit 8 reads as follows : "19.05 756 Information Note S.I. St Force out. In the marginally noted time received a telephonic information from one, who disclosed his identity as Pravas Chalak S/o Lt. Santosh Chalak of Hiruddhi, P.S. Lalgarh, Dist. Pas.Mdp. that today just about minutes ago 3/4 unknown miscreants being armed with small katari and firearms appeared at Baita Bazar, firstly assaulted one Snehashis Das. S/o Sri Anil Kr. Das of Joynagar with Tangi and thereafter opened firing and shot to said Snehashis; the miscreants also assaulted another one Muchiram Chalak S/o Lt. Costa of Hiruddhi P.S. LLg. To work out information myself along with S.I.J. Kabir and force left for Baita Bazar vide CC No. 127 dt. 26.5.06. The charge of the P.S. left with S.I. Arabinda Samanta. No. accd. in the lock up." 12. P.W. 17 Ajit Kumar Mahanty, a Sub-Inspector of Police Jhargram, conducted the inquest on the dead body of the deceased. He admitted in his cross-examination that "No specific name of the accused has been told by them to me". It is significant that the inquest was held on the following day at 08.55 hours in the morning. 13. It is not in dispute that there is a political rivalry between the appellant and the witnesses. 14. He admitted in his cross-examination that "No specific name of the accused has been told by them to me". It is significant that the inquest was held on the following day at 08.55 hours in the morning. 13. It is not in dispute that there is a political rivalry between the appellant and the witnesses. 14. P.W.1, de facto complainant, in his cross-examination admitted that all the witnesses were the members of C.P.I(M). 15. P.W. 2 admitted that the appellant is a member of the Jharkhand Party. P.W. 10 deposed as follows: "Father of accd. Buddhadeb was Pradhan for two terms. Sabita Das is wife of Dilip Das. Sabita Das has contested for ticket of National Congress. Dilip Das belonged to Congress and Jharkhand. I cannot say to what party Paresh Dhal belonged. It is not known to me if he is-an active member of Jharkhand Party." 16. P.W.11 admitted that Buddhadeb was a supporter of Jharkhand Party. 17. Regard being had to the facts and circumstances discussed hereinabove, the submission of Mr. Bagchi, that the appellant was falsely implicated does not appear to be without any substance. The possibility of false implication cannot be ruled out. We have lingering doubt in our mind as regards the involvement of the appellant in this matter and are therefore unable to concur with the first finding recorded by the learned Trial Judge. 18. The second finding as regards conspiracy made by the learned Trial Judge is equally open to serious objection. It is on the basis of the evidence of P.Ws.5, 6 and 10, one can say that the appellant conspired with others to kill the deceased Snehasish. The learned Trial Judge has not been specific in recording his finding as to the material on the basis of which he convicted the appellant under section 302 read with section 120B of the Indian Penal Code. We can see that he has held the appellant guilty both for conspiracy and actual killing, but the way he expressed himself has left much to be desired. 19. P.W. 5, Sudham, deposed that he was returning from Kansai river. He was accompanied by Tapan Dutta (P.W. 6). He saw ten/twelve persons. Four of them were known to him. These four were the persons named in the FIR as the accused persons. 19. P.W. 5, Sudham, deposed that he was returning from Kansai river. He was accompanied by Tapan Dutta (P.W. 6). He saw ten/twelve persons. Four of them were known to him. These four were the persons named in the FIR as the accused persons. According to the P.W. 5, he heard Dilip saying to his companions that "Let us go by this time-Snehashis must have come." To be precise the evidence of the P.W. 5 is as follows: "After taking bath in the Kansai river, I was returning back. On the way, I met Tapas Dutta, who went to Kansai ghat. While we were returning, we found beside river pump 10-12 persons were talking sitting there. I knew four persons among them. Their names are Paresh Dhal, Lasso Hembram, Bddhadeb Giri, Dilip Das. I heard Dilip Das told "Then I returned home. After three hours I heard that Snehasis has been assaulted on head by axe. On the next day, I went there. He died." 20. P.W. 5 in his cross-examination admitted that he was at a distance of 200 fts. It is difficult to believe that anything allegedly said by Dilip to his companions would be audible to a person who is at a distance of 200 fts. 21. P.W. 6, according to the P.W. 5, was accompanying him. Therefore, he was also at a distance of 200 fts. If P.W. 5 could not have heard then P.W. 6 could not have heard, either. What is interesting is that P.W. 5 heard Dilip saying one thing whereas P.W.6 heard something else. 22. We already have translated the conversations deposed to by the P.W. 5 which according to him Dilip told to his companions. P.W. 6 deposed that Dilip told his companions "Let us go, Snehasish might have come". What is more significant is that P.W.6 in his examination deposed that he had heard Dilip saying the aforesaid sentence when he was alone whereas P.W.5 says that he heard Dilip saying the aforesaid sentence when he was accompanied by the P.W. 6. The conversation overheard by these two witnesses does not match. The content of the conversation is equally conflicting. 23. We are, therefore, unable to place any credence on the evidence of P.W. 5 and P.W.6. P.W. 10 Nirmal Giri deposed as follows: "I knew Snehasish Das since deceased. He was murdered on 26.5.06. The conversation overheard by these two witnesses does not match. The content of the conversation is equally conflicting. 23. We are, therefore, unable to place any credence on the evidence of P.W. 5 and P.W.6. P.W. 10 Nirmal Giri deposed as follows: "I knew Snehasish Das since deceased. He was murdered on 26.5.06. On 26.5.06 I went to Kansabati river for nature's call at 5 p.m. When I was performing nature's call, I heard: Then I entered into my shop. Sitting at shop, I heard people were talking: Then I closed my shop and being frightened, I entered into my house." 24. He admitted in his cross-examination that he has a latrine and a bathroom at his house. Therefore there was no occasion for him to go to the nature to respond to the nature's call. Even otherwise the evidence of the P.W. 10 is that he could only see Buddhadeb. He heard what Buddhadeb said. There mayor may not have been any person present. What he heard could well have been a soliloquy. In order to make a conspiracy at least two persons are required. This, witness, did not even see two persons. There is no other evidence on the record to support the conviction under section 120B read with section 302 of IPC. 25. For the reasons discussed above, we are of the view that the conviction and sentence cannot be sustained. The impugned judgment and order of conviction and sentence passed by the learned Trial Judge are set aside. The appeal, as such succeeds. The Reference is accordingly answered. The appellant, Buddhadeb Giri, should be set at liberty at once. He is directed to be released forthwith, if his detention is not required in connection with any other case. 26. Let a copy of this judgment and lower Court records be sent down to the learned Court below forthwith for information and necessary action. 27. Urgent xerox certified copy of this judgment, if applied for by the learned Advocates, appearing for the respective parties, be delivered to them upon compliance of all formalities. Kishore Kumar Prasad, J., I agree. Appeal succeeds.