JUDGMENT Kanchan Chakraborty, J. 1. This appeal is directed against the judgment and order dated 25.4.1998 passed by the learned Additional Sessions Judge, 1st Court at Balurghat, District West Dinajpur convicting the appellants/accused under section 304(Part-II)/34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 2000/-, in default, to suffer rigorous imprisonment for one year more. It was further directed that in case fine if paid, 50% of the same be given to the widow of the deceased as compensation. The judgment and sentence was passed in Sessions case no. 45 of 1987/Sessions Trial No. 27 of 1987. On 1.3.1986 at 21.45 hours one FIR was lodged with the Kumarjang police station by Monoranjan Sarkar alleging therein that on that date while he was cutting fodder for his cattle, his brother-in-law Nayan Mondal reported him that they killed his father. Hearing this, Monoranjan rushed to his father-in-law's house at Amritapur by riding on a cycle and found that the dead body of his father-in-law was lying in front of Biplabi Sangha Club of the village Amritapur. He came to know from the villagers that while his father-in-law was going to Ajhor-hat, the appellants detained him and assaulted him with fist and blows. He fell unconscious. The appellants shifted unconscious body of Nagendra Nath Mondal near the Club-House and poured water on his head. But Nagendra died soon thereafter. It was alleged further that a mark of injury was noticed on the bridge of the nose of Nagendra which appeared to be caused by fist and blows. On the basis of that FIR, Kumarjang Police station case no (30/86) dated 1.3.1986 was started against the appellants. The investigation into the case ended in a charge-sheet under section 304(Part-II)/34 of the IPC against the appellants. The appellants were arrayed to face the above mentioned charges by the learned Trial Court to which they pleaded not guilty and, accordingly, the trial commenced. The learned Trial Court upon consideration of evidence on record and argument advanced by the learned Counsels appearing on behalf of the parties, found the appellant guilty of offence under section 304(Part-II)/34 IPC and sentenced them accordingly by the impugned order. The learned Trial Court upon consideration of evidence on record and argument advanced by the learned Counsels appearing on behalf of the parties, found the appellant guilty of offence under section 304(Part-II)/34 IPC and sentenced them accordingly by the impugned order. The appellants challenged the sustain ability of the judgment on the following grounds: i) that the learned Trial Court failed to appreciate the evidence on record in its proper and true perspective; ii) that the learned Court recorded the order or conviction on the basis of documents and statement which were inadmissible in evidence; iii) that the learned Court unnecessarily put must importance on post-mortem examination report considering the same as a substantive piece of evidence in absence of the evidence of the Autopsy surgeon; iv) that the learned Court erred in coming to a conclusion that the death of Nagendra Mondal was homicidal in nature although the post-mortem examination report of the deceased Nagendra Nath Mondal disclosed that he was having an enlarged heart and right ventricular wall thickened and that admittedly he was a patient of heart disease; v) that the learned Trial Court erred in accepting statement under section 161 Cr.PC as piece of evidence and thereby violated the fundamental principle of law; vi) that the learned Court erred in believing the statement of only eye-witnesses P.W. 4 and P.W. 6 who happened to be a child witnesses; vii) that the judgment being otherwise bad in law, is liable to be set aside; 2. Mr. Sekhar Bose, learned Counsel appearing for the appellant criticized the judgment impugned by contending that the learned Trial Court without ascertaining the exact cause of death, jumped to a conclusion that the death of Nagendra was anti-mortem and homicidal in nature. According to Mr. Basu, it was admitted position that Nagendra was a heart patient. In the post-mortem report, his heart was found enlarged and right ventricular wall thickened. The examination of the Autopsy surgeon as a witness was a must in such a case. The prosecution withheld the examination of Autopsy surgeon and, as such, it can not be said with certainty that death of Nagendra was ante-mortem and homicidal in nature. 3. Mr. Basu contended further that the learned Trial Court did not accept the evidence of P.W. 1 and P.W. 2 i.e. Dijandra Nath Mahanto and Giri Karmakar. The prosecution withheld the examination of Autopsy surgeon and, as such, it can not be said with certainty that death of Nagendra was ante-mortem and homicidal in nature. 3. Mr. Basu contended further that the learned Trial Court did not accept the evidence of P.W. 1 and P.W. 2 i.e. Dijandra Nath Mahanto and Giri Karmakar. These two witnesses were not declared hostile by the prosecution and in view of decision of the Apex Court in Raja Ram vs. State of Rajeshthan (2005) SCC (Cri) 1050 and Muktiar Ahamed Ansari vs. State (2005 SCC (Cri) 1037, the evidence of P.W. 1 and P.W. 2 are binding on the prosecution. 4. Mr. Basu contended further that the P.W. 3 i.e. the lodger of the FIR stated in course of his examination that on the fateful date while he was cutting fodder for his cattle, his brother-in-law Nayan (P.W. 4) reported him that his father was murdered by the appellants. Hearing that he had been to Amritapur by riding on a bi-cycle and reaching there, he found the dead body of father-in-law Nagendra was lying on the Court yard of the village dub. He stated further that his brother-in-law Nayan (P.W. 4) also stated that while Nagendra was going to Ajhoir-hat, the appellants chased him and assaulted him to death. In his cross-examination, the P.W. 3 denied that his brother-in-law (P.W. 4) did not specifically named the assailants of his father and he did not mention the same in the FIR. However, he admitted that he did not mention in the FIR that he heard the names of the assailants of his father-in-law from Nayan. Mr. Basu contended that the FIR which has been marked as Ex. 1 shows clearly that Nayan, the P.W. 4 stated that 'Ora' caused death of his father. The FIR shows clearly also that the lodger of the FIR i.e. the P.W. 3 came to know from the villagers of Amritapur that Nagendra was assaulted by the appellants to death. According to Mr. Basu, this discrepancy in the facts stated in the FIR and the statement of the P.W. 3 was not considered by the learned Trial Court at all which, according to him, appears to be a vital one. 5. Mr. According to Mr. Basu, this discrepancy in the facts stated in the FIR and the statement of the P.W. 3 was not considered by the learned Trial Court at all which, according to him, appears to be a vital one. 5. Mr. Basu contended further that the evidence of P.W. 4, Nagendra Nath Mondal, who was a minor at the relevant period of time, ought to have, been analyzed by the Trial Court critically because according to the E.W. 4, he was going towards market by riding on a bi-cycle and was 1/2 Bigas ahead of his father Nagendra who was also coming towards the market by riding on another bi-cycle. He did not stop and look behind till he reached the opposite bank of the river Ichhamati. He was on the other side of the river, at that time when he looked behind and did not find his father coming. He crossed the river, came to the spot and found the appellants were assaulting his father with fist-blows. His father fell down and the appellants brought water from nearby pan-baraj an poured on his head. Mr. Basu has drawn my attention to the evidence of the P.W. 4 that he found reaching on the spot that his father expired. In his cross-examination he stated that Ichhamati river is not visible from Ajhoir-hat. He went to the spot crossing the river on foot hearing a shouting of his father and found the appellants Dijen and Giri assaulting his father. At that time, no villager was present. Mr. Basu contended that the incident had taken place near pan-baraj of the P.W. 1. The P.W. 1 and P.W. 2 categorically stated that hearing the sound of falling of something on ground, they came out of the pan-baraj and found Nagendra was lying on the Kutcha road. The appellants, who were in the nearby club rushed to the spot, lifted Nagendra to the Varandha of the club and poured water on his head. If, according to Mr. Basu, the evidence of P.W. 1 and P.W. 2, who were not declared hostile to be believed, then evidence of P.W. 4 should not have been disbelieved by the learned Trial Court because the P.W. 1 and P.W. 2 witnessed the incident right falling of Nagendra on road till pouring of water by the appellants. If, according to Mr. Basu, the evidence of P.W. 1 and P.W. 2, who were not declared hostile to be believed, then evidence of P.W. 4 should not have been disbelieved by the learned Trial Court because the P.W. 1 and P.W. 2 witnessed the incident right falling of Nagendra on road till pouring of water by the appellants. Neither the P.W. 1 nor the P.W. 2 stated that they found P.W. 4 on the spot. Again, the P.W. 4 has stated categorically that when he reached the spot no villager was present there. According to Mr. Basu, the evidence of eye witnesses i.e. P.W. 1 and P.W. 2 is not matching with the evidence of the P.W. 4 and that the learned Trial Court was oblivious of this fact and believed the testimony of the P.W. 4 and recorded conviction. 6. Mr. Basu contended that P.W. 6 Dipali Mondal, daughter of the deceased Nagendra and sister of the P.W. 4 stated that since father Nagendra refused to oblige the appellants by giving sweet meet, he was assaulted by them till death while he was going to Ajhoir-hat. The P.W. 6, Mr. Basu continued, stated further that at the relevant time the P.W. 6 was playing by the side of river Ichhamati. In her cross-examination, she stated that she found the dead body of her father in front the club house. Prior to that she found the appellants to assault her father. She denied that she did not state the Investigating Officer that since her father refused to provide the appellants with sweet meets, they assaulted him to death. She did not also state the I.O. that at the relevant time she was playing in the field near Ichhamati. Mr. Basu has drawn attention of this Court to the fact that neither the P.W. 4 nor the P.W. 6 mentioned each others presence in the scene. Had the P.W. 4 or the P.W. 6 been at the P.O. watching their father being assaulted by the appellants, they would have mentioned each other presence on the spot in course of their examination. That has not been stated by them. Besides that, according to Mr. Basu, the conduct of P.W. 4 and P.W. 6 does not appear to be normal because seeing their father being assaulted, neither of them made any effort to save their father. According to Mr. That has not been stated by them. Besides that, according to Mr. Basu, the conduct of P.W. 4 and P.W. 6 does not appear to be normal because seeing their father being assaulted, neither of them made any effort to save their father. According to Mr. Basu this is unnatural and abnormal behavior or conduct on the part of the P.W. 4 and P.W. 6 which the Trial Court failed to take into consideration. Mr. Basu continued his contention stating that the P.W. 7, wife of the deceased Nagendra and mother of P.W. 4 and P.W. 6 has stated that her daughter Dipali (P.W. 6) reported her that the appellants were chasing Nagendra and assaulted Nagendra by fists and blows. Hearing that, she rushed to the spot near the pan-baraj by the side of river Ichhamati and found the dead body of her husband. This statement of P.W. 7 was not supported by the P.W. 6 Dipali. No where, she stated that she reported the incident to her mother while Nagendra was being assaulted by the appellant. She also did not state that fact to the I.O. in course of her examination by the I.O. The P.W. 7 did not state any where that she found the appellants pouring water on the head of Nagendra. She did not also mention that whether she found the appellants on the spot or not when she reached there. Therefore, according to Mr. Basu, the learned Court ought not have accepted the evidence of P.W. 4, P.W. 6 and P.W. 7 for being inconsistent with each other. Mr. Basu also has taken this Court to the evidence of the I.O. of the case i.e. the P.W. 9. The P.W. 9 who had up the investigation of the case recorded statement of witnesses. He stated that the P.W. 6 Dipali stated him that she saw the accused persons i.e. appellants to chase her father and after informing her mother while each came back, she found the appellants to pour water on the head of her father. The P.W. 9 stated further in his cross-examination that Dipali did not state that she saw the appellants to assault her father. The P.W. 9 stated further in his cross-examination that Dipali did not state that she saw the appellants to assault her father. The P.W. 9 recorded the statement of Usha Mondal, the P.W. 7 and according to the statement of P.W. 9, the P.W. 7 Usha Mondal did not disclose to him that her daughter Dipali reported her that she saw the appellants to assault her father rather she stated the P.W. 9 that while she reached near the pan-baraj of the P.W. 1 Dijan Mahato, she found that water being poured on the head of her husband. The evidence of the P.W. 9 being the I.O. can not be discarded specifically in the background that the P.W. 4, P.W. 6 and P.W. 7 made statements inconsistent to each other. The P.W. 9 found one injury on the bridge of the nose of the deceased. No other external injury was found. He could not trace out the cycle and the bag containing the tin of sweet meet on spot. 6. Mr. Basu also contended that Autopsy surgeon was not examined by the prosecution. He has drawn attention of this Court to the postmortem report which was marked Ex. 3, The Doctor who conducted the P.M. detected only one abrasion over right aloe of nose. He found enlarged heart and right ventricular wall thickened. But, opined that death was caused due to effect of injuries as described which was' anti-mortem in nature. No where within the four corners of Ex. 3 it has been mentioned that the death was homicidal in nature. Whether the injury on the bridge of the nose could be the cause of death was a question before the learned Trial Court and the learned Trial Court without answering the question properly, by-passed the issue and believed the uncorroborated, inconsistent and untrustworthy evidence of the P.W. 4, the P.W. 6 and the P.W. 7. Mr. Basu contended further that this is a fit case where the Appellate Court should interfere and set aside the judgment and order of conviction and sentence. 7. Mr. Ranjit Kumar Ghosal, learned Counsel appearing for the respondent/State contended that the evidence of P.W. 1 and P.W. 2 could not be believed by the Trial Court on the reasons specifically mentioned in the judgment which, according to Mr. Ghosal, can not possibly be ignored by this Court of appeal. 7. Mr. Ranjit Kumar Ghosal, learned Counsel appearing for the respondent/State contended that the evidence of P.W. 1 and P.W. 2 could not be believed by the Trial Court on the reasons specifically mentioned in the judgment which, according to Mr. Ghosal, can not possibly be ignored by this Court of appeal. Again, the learned Court had made no mistake in believing the statement of P.W. 4 and P.W. 6 and P.W. 7 because they had been to the place of occurrence either at the time of incident or immediately thereafter. Mr. Ghosal contended that the fact that Nagendra sustained injury on the bridge of his nose is an admitted position. The injury was detected in course of post-mortem and was also found by the P.W. 9, the La. of the case. The P.W. 3 who lodged the FIR also found that injury when he reached the place of occurrence. Mr. Ghosal contended further that the fact that the appellants poured water on the head of Nagendra is also an admitted fact. That fact has been admitted by the P.W. 1 and the P.W. 2. It is also admitted position that Nagendra was going towards market at the relevant time by riding on a bi-cycle through the road besides the local club. If so, there was nothing wrong in the judgment impugned whereby the learned Trial Court came to a conclusion from the facts and circumstances and the evidence on record that Nagendra died due to assault on him by the appellants. According to Mr. Ghosal the impugned judgment is not required to be interfered with in this appeal. 8. In the instant case, the FIR was lodged by the P.W. 3 who did not witness the incident. There can not be any dispute as to the fact that the information given to him by the P.W. 4 was not, in fact, in details at least the FIR (Ex. 1) does not disclose that fact because it does not contain the fact that the P.W. 4 Nayan disclosed the names of the appellants as assailants of Nagendra. It is also can not be denied that the FIR clearly says that the P.W. 3 came to know that appellants assaulted Nagendra from villagers of Amritapur while the P.W. 3 reached the spot. He tried to make up this latches on his part unsuccessfully. It is also can not be denied that the FIR clearly says that the P.W. 3 came to know that appellants assaulted Nagendra from villagers of Amritapur while the P.W. 3 reached the spot. He tried to make up this latches on his part unsuccessfully. He did not mention the names of the villagers who had given the information that Nagendra was assaulted by the appellants. Therefore, the evidence of P.W. 3 was not of any assistance to the prosecution. 9. The P.W. 1 and P.W. 2 are the men who could have been the eye-witnesses of the incident because they were in pan-baraj by side of which, the alleged incident had taken place. At the relevant time the P.W. 4 and P.W. 7 were not near the place of occurrence. The evidence of the P.W. 6 Dipali does not indicate that she had been watching her father constantly from a considerable distance or heard any shouting as stated by the P.W. 4. Naturally the P.W. 1 and P.W. 2 being the men present nearest to the place of occurrence, had the opportunity to witness the incident. They have, however, not supported the case of the prosecution at all. They stated categorically that hearing a sound of falling a ground, they came out of pan-baraj and found Nagendra was lying on the Kutcha road which was extremely uneven in the rainy season. They started categorically also that seeing Nagendra falling on the road from his bi-cycle, the appellants rushed to the spot, lifted him on the Varandha of the club house and poured water on his head. The P.W. 1 and P.W. 2 have not stated any where that the P.W. 4, the P.W. 6 and the P.W. 7 were present at that time or during the period from falling of Nagendra on road to pouring of water by the appellant on the Nagendra's head on the Varandha of the Club House. It is not understood why the learned Trial Court' did not rely on the testimony of the P.W. 1 and P.W. 2. The P.W. 1 and P.W. 2, were not declared hostile by the prosecution. No doubt, in view of decision of Raja Ram (Supra) and Muktiar Ahamed Ansari (Supra) prosecution is bound by such testimonies of the prosecution witnesses who were not declared hostile although did not support the prosecution case. The P.W. 1 and P.W. 2, were not declared hostile by the prosecution. No doubt, in view of decision of Raja Ram (Supra) and Muktiar Ahamed Ansari (Supra) prosecution is bound by such testimonies of the prosecution witnesses who were not declared hostile although did not support the prosecution case. Again, the learned Trial Court did not judge the preponderance of probability factor. The learned Judge did not at all consider as to who would be the man possibly witnessed the incident. Had the, learned Court judged the prosecution case considering the preponderance of probability factor it would have considered the P.W. 1 and P.W. 2 would be the best and reliable witnesses examined on behalf of the prosecution. The reason assigned by the learned Trial Court (in fact no reason has been assigned) can not be said to be reasonable and justified one. On that score, I must accept the contention of Mr. Basu. 10. The post-mortem report i.e. Ex. 3 indicates that the death of Nagendra was anti-mortem in nature. The Autopsy surgeon was not examined by the Trial Court. Withholding the evidence of the Autopsy surgeon by the prosecution in such a case where the post-mortem report does not disclose that the death was homicidal in nature, no doubt, is fatal to the prosecution especially when, the probable eye-witnesses narrated a different story. The learned Trial Court was oblivious the fact that the deceased Nagendra was, a patient of heart decease and the Autopsy surgeon report in the post-mortem (Ex. 3) that his heart was found enlarged and right ventricular wall thickened and that no external injury save and except and abrasion on the bridge of the nose could be detected. I find that the learned Trial Judge had given unnecessary importance on the Ex. 3 without examining the author of the same and without probing deep into the fact as to what would be the possible cause of death. I find that learned Court put much importance on the fact that the P.W. 7 was manhandled by the appellants when she reached the spot. Learned Court also put emphasis on the fact that the I.O. did not find the appellants in their respective houses when he conducted raid to arrest them. I find that learned Court put much importance on the fact that the P.W. 7 was manhandled by the appellants when she reached the spot. Learned Court also put emphasis on the fact that the I.O. did not find the appellants in their respective houses when he conducted raid to arrest them. I do not find any reason as to why the learned Trial Court put much importance on these two factors which have no connection, direct or indirect, with the alleged incident. One man, out of fear, may leave house because police was searching for him. This is usual tendency of general people. They surrendered in Court not that they absconded and were arrested subsequently by the police official. Again, P.W. 7 was manhandled but no one corroborated her statement to that effect excepting the I.O. (P.W. 9) who stated that the P.W. 7 informed him that she was kicked by the appellants when she reached the spot. On careful scrutiny of the evidence of the P.W. 4 and the P.W. 6 it appears to me that none of them has stated that when their mother (P.W. 7) reached the spot together with the P.W. 6, she was kicked and pushed aside by the appellant. The P.W. 7 stated that appellant Bijan Pushed her aside and kicked her when she reached the spot. The P.W. 9 i.e. the I.O. of the case stated that P.W. 7 disclose to him at the time of investigation that she was kicked aside by those person (the appellants). She did not mentioned the specific name of the appellant Bijan. Again, the P.W. 9 made it clear in his cross-examination that he tried his best to find out eye witnesses of the incident but could not get any excepting the P.W. 1 and P.W. 2. Such being the fact, it is not understood as to why the learned Trial Court put much importance on irrelevant material/evidence and ignored the relevant evidence/material on record. 11. It is rightly contended by Mr. Basu that the evidence of P.W. 4, P.W. 6 and P.W. 7 are self-contradictory and inconsisting to each other because none of them mentioned each others presence in the place of occurrence and what the P.W. 6 stated was not supported by the P.W. 7 and the P.W. 4 and what P.W. 4 stated, was not supported by the P.W. 6 and P.W. 7. The description of the incident given by them are not tallying with each other. There appears to be two stories brought on record by the prosecution during the trial having sharp difference. The evidence of P.W. 1 and P.W. 2 who were not declared hostile, being the eye-witnesses according to the P.W. 9 (I.O.) had given a different story than what has been projected through the P.W. 4, P.W. 6 and P.W. 7, Therefore, I find that there is substance in the contention of Mr. Basu which can not be bypassed. 12. In fact, Mr. Basu has pointed out the gray arrears of the prosecution case which the learned Trial Court ignored and tried to cover by using irrelevant evidence in order to justify recording of conviction. When the eye-witnesses did not support the prosecution case, the injury on the body of the deceased was not found grave in nature, the death was not declared to be a homicidal in nature and the witnesses of the prosecution made inconsistent and uncorroborated statement, learned Trial Court should not have recorded-conviction and given the appellants benefit of doubts. 13. On critical scrutiny of the evidence on record, oral and documentary, upon perusal of the judgment impugned and upon consideration of the submission made by Mr. Basu and Mr. Ghosal I am of opinion that the judgment impugned is not sustainable in law and is liable to be set aside. The order of conviction is not justified on facts and evidence en record. 14. In view of discussion above, the appeal is allowed. The judgment and order of conviction and sentence is set aside. The appellants to set at liberty at once and discharged from the bail bonds. Appeal allowed