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2012 DIGILAW 1041 (CAL)

Ananta Ray v. STATE OF WEST BENGAL

2012-12-17

KANCHAN CHAKRABORTY

body2012
Judgment :- Kanchan Chakraborty, J. The challenge in this appeal is to the judgment and order dated 25.02.2010 passed by the learned Additional District and Sessions Judge, 3rd Fast Track Court, Alipurduar in Sessions Trial No. 54 of 2008 arising out of Sessions Case No. 158 of 2008 thereby convicting the appellants (1) Ananta Ray, (2) Biswath Ray alias Biswanath Ray, (3) Amulya Ray and (4) Prafulla Ray for committing offence under Sections 304 (Part-II)/34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for seven years with fine of Rs.1,000/-. The judgment impugned has been challenged mainly on the following grounds: (i) that there was inordinate delay in lodging the First Information Report and the explanation offered by the prosecution was not at all convincing; (ii) that the learned Trial Court failed to take into consideration that there was strong animosity between the family members of the appellants and the family members of the de facto complainant; (iii) that the learned Court erred in not acquitting the appellants on benefit of doubt because two views were possible from the evidence on record and facts situation of the case; (iv) that the learned Court failed to appreciate that no witness had actually present in the scene and witnessed the alleged incident; (v) that the learned Court also did not take into consideration that no local people had supported the prosecution case; (vi) that the learned Court erred in believing the evidence of the P.W. 6, which was entirely hearsay as far as alleged incident was concerned; (vii) that the learned Court erred in accepting the opinion of the P.W. 14 ignoring the opinion of the P.W. 9 in respect of the cause of injuries sustained a by the deceased; (viii) that the learned Court came to a conclusion, without any support of evidence, that there was quarrel over the issue of “Khaini” (Tobacco leaf) between the deceased and one of the appellants in the market prior to the alleged incident of assault; (ix) that the learned Court was oblivious of the major discrepancies in the statements of the witnesses on materials points, which had shaken the root of the prosecution case; and (x) that the judgment being otherwise bad in law, is liable to be set aside. On 10.09.2005, at 17.30 hours, one First Information Report was lodged by Santosh Roy (P.W. 1) in the Alipurduar Police Station alleging therein that on 05.09.2005 at about 4.00 P.M., his younger brother Parimal Roy, went to Shalkumar market where he asked for tobacco from Amulya Ray (appellant no. 3) but was refused. Over that issue, a quarrel took place between them. Thereafter, Parimal returned back home from Shalkumar Market. At about 7.00 P.M., Amulya and other three appellants came in front of the house of the de facto complainant and called out Parimal. Parimal came out and there was an altercation between him and the appellants. The appellants hit Parimal on different parts of his body with sticks and iron rod. Parimal fell down on the ground being fainted and the appellants fled away hearing hue and cry raised by the family members of Parimal. Injured Parimal was taken to Munshipara Primary Health Centre by Santosh Roy (P.W. 1) with the help of local people. As his condition deteriorated, the doctor referred him to North Bengal Medical College and Hospital on 06.09.2005. Parimal died on 08.09.2005 at 1.00 p.m. A U.D. case, being No. 499 of 2005, dated 08.09.2005 in Matigara Police Station was filed and the dead body was brought back to home after post mortem. It was stated in the First Information Report by Santosh Roy (P.W. 1) that he was alone and there was nobody with him to give his injured brother company and to arrange for his medical treatment. For that reason, he could not lodge the First Information Report in time. On the basis of the said First Information Report, the Alipurduar Police Station Case No. 182 of 2005 dated 10.09.2005 was started. The case was investigated into and, ultimately, ended in a charge sheet under Sections 304/34 of the Indian Penal Code against the appellants. The appellants were arrayed to face charge of culpable homicide under Sections 304/34 of the Indian Penal Code, pleaded not guilty to the charge and faced the trial. The learned Trial Court, upon consideration of the evidence on record, oral and documentary, found that the prosecution brought home the charge under Section 304(part-II) read with Section 34 of the Indian Penal Code and, accordingly, passed the order of conviction and sentence, which is impugned in this appeal on the grounds already mentioned. The learned Trial Court, upon consideration of the evidence on record, oral and documentary, found that the prosecution brought home the charge under Section 304(part-II) read with Section 34 of the Indian Penal Code and, accordingly, passed the order of conviction and sentence, which is impugned in this appeal on the grounds already mentioned. According to the First Information Report, Parimal was taken to Munshipara Primary Health Centre after the assailants retreated hearing hue and cry raised by the family members of Parimal. Parimal was referred to North Bengal Medical College and Hospital and was admitted there on 06.09.2005. Mr. Mukherjee, learned advocate for the appellants, contended that Parimal died on 08.09.2005 and a U.D. Case was started. Inquest on the dead body of Parimal was done on 09.09.2005. Post mortem of his dead body was done on 09.09.2005. The First Information Report was lodged on 10.09.2005 at 05.30 p.m. The explanation given in the First Information Report and stated by the P.W. 1, in such situation and circumstance, cannot be said to be sufficient and satisfactory. After inquest and post mortem on the dead body, the First Information Report was lodged although the victim died on 08.09.2005. Mr. Mukherjee further contended that certain factors related to this delay, such as, (I) the inimical relations between the deceased and the appellants, (II) that the deceased was admitted in the hospital in intoxicated condition, (III) that there was evidence to that effect that Parimal fell down from a tree, are also to be taken into consideration in order to ascertain the inordinate delay in lodging the First Information Report. The learned Trial Court did not consider the case from that angle. He referred to the decisions of the Hon’ble Apex Court in Kishan Singh (Dead) vs. Gurpal Singh & Ors., reported in (2010) 3 SCC (Cri) 1091, Ramesh Baburao Devaskar & Ors. vs. State of Maharashtra, reported in (2007) 13 SCC 501 , Om Prakash vs. State of U.P., reported in AIR 2009 SC 944 and Mahtab Singh & Anr. Vs. State of U.P., reported in AIR 2009 SC 2298 , in support of his contentions. Mr. vs. State of Maharashtra, reported in (2007) 13 SCC 501 , Om Prakash vs. State of U.P., reported in AIR 2009 SC 944 and Mahtab Singh & Anr. Vs. State of U.P., reported in AIR 2009 SC 2298 , in support of his contentions. Mr. Kallol Mondal, learned advocate appearing on behalf of the respondent-State of West Bengal, contended that not only in the First Information Report it has been categorically stated that the lodger of the First Information Report was a lone person and no one to assist him in the matter of medical treatment of his injured brother, the delay was caused for lodging the First Information Report, but the P.W. 1 himself and other witnesses supported that fact. Therefore, Mr. Mondal contended, when delay has been properly explained, the learned Trial Court had rightly came to a conclusion that such delay in lodging the First Information Report was not fatal to the procession. Turning to the First Information Report, i.e., the Exbt. 1, I find that the alleged incident took place on 05.09.2005 at about 7.00 p.m. Prior to that, another incident had taken place at 4.00 p.m. in the market. There was an altercation between Parimal (since deceased) and the appellant, Amulya, over the issue of “Khaini”. On the very date, at 7.00 p.m., Amulya together with other three appellants had been to the house of Parimal and there was a hot altercation between them and, thereafter Parimal was assaulted by them with sticks and iron rod. Parimal fainted and fell down on the ground. The appellants left the place hearing hue and cry raised by the family members of Parimal. The de facto complainant, Santosh Roy, who happens to be the brother of Parimal (since deceased), with the help of local people, admitted Parimal in the Munshipara Primary Health Centre wherefrom he was referred to North Bengal Medical College and Hospital on 06.09.2005 and on 08.09.2005, Parimal died at 1.00 p.m. A U.D. case, being No. 499 of 2005 dated 08.09.2005, was registered with the Matigara Police Station. Post Mortem on the dead body of Parimal was done thereafter. The Exbt. 1 shows that the First Information Report was received on 10.09.2005 at 5.30 p.m. by the Police Station and it was lodged by Santosh Roy. Post Mortem on the dead body of Parimal was done thereafter. The Exbt. 1 shows that the First Information Report was received on 10.09.2005 at 5.30 p.m. by the Police Station and it was lodged by Santosh Roy. In the First Information Report Santosh Roy stated that he was alone and as there was nobody with him, he had to remain with his brother for the sake of his treatment. As such, he could not inform Police Station regarding the incident. In the instant case, inquest under Section 174 of the Code of Criminal Procedure was done on the basis of Matigara U.D. Case No. 499 of 2005 dated 08.09.2005 on 09.09.2005 by Ajit Kumar Poddar, A.S.I., who was examined as P.W. 8. The inquest report was marked as Exbt. 2 by the learned Trial Court in course of trial. It appears therefrom that the inquest was done on 09.09.2005, which was started at 12.50 hours and concluded at 13.05 hours. It was stated in the report that there was no sign of injury anywhere but on the right ear and head of the dead body. It also appears from the Exbt. 2 that the P.W. 8 came to know that on the relevant date, i.e., 05.09.2005 at 16.00 hours the deceased while cutting the branches of Gamari Tree, fell down from about twenty feet height and got injuries on his head and chest. On 06.09.2005 he was taken to the local Health Centre and, thereafter, referred to North Bengal Medical College and Hospital and on 08.09.2005 he died at 01.01 hours. The inquest report was signed by Haleswar Barman, who was not examined, and Ramprosad Adhikari, the P.W. 6. The post mortem report, which was marked Exbt. 9, shows that the post mortem on the dead body of Parimal was done on 09.09.2005 and it also shows that opinion of the medical officer as the cause of death was “due to effect of head injury, antemortem in nature.” The P.W. 1, Santosh Roy , was the lodger of the First Information Report. In the First Information Report, (Exbt. 1), it has been categorically stated by the lodger of the First Information Report that since there was none but him in the house and he was busy with medical treatment of his injured brother, he could not inform the police about the incident in time. In the First Information Report, (Exbt. 1), it has been categorically stated by the lodger of the First Information Report that since there was none but him in the house and he was busy with medical treatment of his injured brother, he could not inform the police about the incident in time. Same thing has been reiterated by the P.W. 1 while examined in Court. He stated that he could not lodge the First Information Report earlier because his parents were very old. His father could not move or walk. His another brother lives in Delhi. He was alone in the house and busy with the treatment of his injured brother Parimal and could not lodge the First Information Report earlier. Now the question is, in such a situation, when the incident took place on 05.09.2005, the injured died on 08.09.2005, the Inquest and the Post Mortem were done on 09.09.2005 and the First Information Report was lodged thereafter on 10.09.2005 that too at 5.30 p.m., whether explanation given by the P.W. 1 can be accepted or not. It is more or less settled principle of law that prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the First Information Report, the complainant must give explanation for the same. Undoubtedly, delay in lodging the First Information Report does not make the complainant’s case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. In Kishan Singh (Dead) through LRS. (supra), the Hon’ble Apex Court opined that in cases where there is a delay in lodging First Information Report, the Court has to look for a plausible explanation for such delay. In absence of any such explanation , the delay may be fatal. It was a case before the Hon’ble Apex Court where a proceeding was sought to be quashed for various reasons and one of the reasons was delay in lodging the First Information Report. In Ramesh Baburao Devaskar (supra), there was no delay in lodging the First Information Report. There was delay in forwarding the First Information Report to the Magistrate by the Police Station. Therefore, this decision referred to by Mr. Mukherjee, learned advocate for the appellants, does not appear to be applicable in this case. In Ramesh Baburao Devaskar (supra), there was no delay in lodging the First Information Report. There was delay in forwarding the First Information Report to the Magistrate by the Police Station. Therefore, this decision referred to by Mr. Mukherjee, learned advocate for the appellants, does not appear to be applicable in this case. In Om Prakash (supra) it was held by the Hon’ble Apex Court that delay in lodging the First Information Report has great importance when incident had taken place out of enmity. The factual aspect of the case before the Hon’ble Apex Court and that of this case are not similar. There were discrepancies as regards timing of lodging of First Information Report and there were some interpolations in the First Information Report also which was written by a scribe living in a separate village far away from the place of occurrence. We do not have such a factual background in this case. It is true that the First Information Report was filed after holding of inquest and post mortem. The injured Parimal was taken to a local Primary Health Centre immediately after the incident, i.e., after 7.00 p.m. on 05.09.2005. Dr. Subir Nandi, the P.W. 9, examined Parimal on 06.09.2005. Parimal was brought and identified by Santosh Roy. On examination of Parimal he found swelling over the left side of the face and one swelling bruise mark over midfrontal region of face. Santosh stated him that Parimal was assaulted by some persons named Ananta Roy, Prafulla Roy, Amulya Roy and Biswanath Roy. No doubt, the P.W. 9 examined the injured Parimal on that date at Munshipara Primary Health Centre and prepared a report, which was marked Exbt. 5. But , nowhere it was stated by the P.W. 9 or mentioned in the Exbt. 5 that Parimal was brought to Munshipara Primary Health Centre on 05.09.2005 as stated in the First Information Report. According to the First Information Report, after the incident, with the help of local people, Santosh took his injured brother to Munshipara Primary Health Centre and on 06.09.2005 he was referred to North Bengal Medical College and Hospital, Siliguri. The P.W. 9 has also stated categorically that Parimal was taken to Munshipara Primary Health Centre for treatment. He did not mention the date. Therefore, it can be taken for granted from the evidence of P.W. 9 and P.W. 1 supported by Exbts. The P.W. 9 has also stated categorically that Parimal was taken to Munshipara Primary Health Centre for treatment. He did not mention the date. Therefore, it can be taken for granted from the evidence of P.W. 9 and P.W. 1 supported by Exbts. 1 and 5, that injured Parimal was taken to Munshipara Primary Health Centre first of all on the date of incident and therefrom he was referred to North Bengal Medical College and Hospital on 06.09.2005. It is also found from the Exbt. 5 that history of case, as stated by the P.W. 1, that Parimal was assaulted by some persons, namely, (1) Ananta Roy, (2) Prafulla Roy, (3) Amulya Roy and (4) Biswanath Roy on 05.09.2005 at about 6.00 p.m. in his house with hands, pieces of bamboo, etc. while Parimal was in intoxicated condition. From the prosecution evidence it is found that the injured Parimal died on 08.09.2005 and on the basis of the said unnatural death, one U.D. case was started. The inquest report, i.e., Exbt. 2 and post mortem report, i.e., Exbt. 9 supported that fact. From the facts above, it is also clear that in between filing of U.D. case and First Information Report on 10.09.2005, the post mortem on the dead body of Parimal and inquest of the dead body were done on 09.09.2005. It is true that there was no reason for the P.W. 1 not to lodge the First Information Report after death of Parimal on 08.09.2005. He unnecessarily waited for another one day and lodged the First Information Report on 10.05.2005. It is found from the evidence of the P.W. 1, which was supported by Exbt. 5 (Injury Report of Primary Health Centre) that Santosh Roy informed the doctor that Parimal was assaulted by the appellants on 05.09.2005 at about 6.00 p.m. inside his house with hands and pieces of bamboo etc. while he was in intoxicated condition. Naturally, the P.W. 1 disclosed the names of the assailants to the doctor immediately after the incident. In other words, he did not put the names of the appellants in the First Information Report as assailants in order to rope them in a false criminal case. It is found form the evidence of P.W. 1 that his brother was living in Delhi. His father and mother, the P.Ws. In other words, he did not put the names of the appellants in the First Information Report as assailants in order to rope them in a false criminal case. It is found form the evidence of P.W. 1 that his brother was living in Delhi. His father and mother, the P.Ws. 2 and 3, were old persons and, naturally, he had to take care of medical treatment of his injured brother, Parimal and, obviously, had to follow the formalities after death of Parimal. He was not present even at the time of inquest. Apparently, the reason given by him in lodging the First Information Report on 10.09.2005 were sufficient, satisfactory and acceptable. The principal that emerges from the decision in Kishan Singh (supra) is that in case where there is delay in filing the First Information Report, the complainant must give explanation for the same. Although, delay in lodging the First Information Report does not make the complainant’s case improbable when such delay is properly explained, if not deliberate one. Following that principal, it can be said that in the instant case there was no deliberate delay in lodging the First Information Report. The complainant has given sufficient and satisfactory explanation for the delay in filing the First Information Report. There is categorical statement to that effect. It is reiterated that when the names of the assailants were disclosed before the doctor, more or less, immediately after the incident, the proposition that by way of filing of First Information Report subsequently, the appellant were roped in the criminal case falsely cannot possibly be accepted. Mr. Mukherjee, learned advocate for the appellants contended that there was animosity amongst the injured and the appellants, which has been prominently canvassed in the evidence. As regards animosity, it can be said that the alleged incident had taken place between one of the appellants and the victim over the issue of “Khaini” (tobacco leaf) three hours prior to the incident. No one had seen that incident. It is found from the evidence that there were criminal case against the P.W. 1 filed by one of the appellants, his father and others. The appellants were previously residing in the property of the family of the injured. There was some dispute over that issue and criminal case also filed by the appellants against the family members of the injured. The appellants were previously residing in the property of the family of the injured. There was some dispute over that issue and criminal case also filed by the appellants against the family members of the injured. This animosity alone cannot be said to be the only ground for which the case of the prosecution can be thrown away. It cuts in both the ways as it might be that the appellants, being furious owing to animosity, assaulted Parimal (since deceased) when he was in intoxicated condition taking the issue of “khaini”, which had allegedly taken place at 4.00 p.m. on that date in the market. So, I do not like to put much importance on this. Now, the crucial question comes in is who had seen the appellants to assault the deceased. According to the P.W. 1, he rushed to the spot hearing the hue and cry. Seeing him the appellants ran way from the spot. He stated in his cross-examination that many people gathered on the spot, such as, Debaru Roy, Amboy Roy, Anil Roy, Krishna Roy, Setua Roy, Nagen Roy and Subhas Roy after the P.W. 1 reached there. In his cross-examination he stated that he did not take the injured Parimal to hospital on that very night. The Exbt. 5 (Injury Report ofPrimary Health Centre) also shows that the injured was taken to Primary Health Centre on 06.09.2005 at 09.30 a.m. This appears to be peculiar. According to the Investigating Officer of the case, hospital was only two kilometers away from the place of occurrence and the victim was left without medical treatment from 7.00 p.m. dated 05.09.2005 to 9.30 a.m. dated 06.09.2005. There was no plausible reason for the inmates of the victim to keep such an wounded and unconscious man in the house for such a long period without medical treatment although which was available within two kilometers. The P.W. 6 in this crossexamination stated that there were many vans, rickshaws etc. in the village, which were the main source of transportation in the area. The incident had taken place in the month of September, i.e, not in winter at 7.00 p.m. Therefore, there was no difficulty for the inmates of the injured to take him to the hospital, which was only two kilometers away by availing of the transportation like vans or rickshaws. The incident had taken place in the month of September, i.e, not in winter at 7.00 p.m. Therefore, there was no difficulty for the inmates of the injured to take him to the hospital, which was only two kilometers away by availing of the transportation like vans or rickshaws. The P.W. 2, the father of the victim, stated that he heard hue and cry of Parimal on the fateful date and time. It was dark at that time and on reaching the place of occurrence, he saw Parimal was lying on the ground. He stated that his wife and daughter-in-law came behind him. In his cross-examination, he stated that Santosh (P.W. 1) arrived at the place of occurrence 4/5 minutes after the P.W. 2 reached there. There is strong material discrepancies in the statement of P.W. 1 and P.W. 2 in the matter of their appearance in the scene. The P.W. 1 has not stated that his father reached at the place of occurrence hearing hue and cry, in fact, he has not stated anywhere that his father and mother appeared in the scene besides himself and others. According to the P.W. 2, he reached the place of occurrence and found Parimal was lying. According to him, his wife and daughter-in-law came behind him and Santosh (P.W. 1) came there 4/5 minutesthereafter. The P.W. 2 has not stated anywhere that he found the appellants running away from the place of occurrence after assaulting Parimal. If that being so, when Santosh (P.W. 1) arrived 4/5 minutes after arriving of the P.W. 2 at the place of occurrence, he must not have seen the appellants to run away from the place of occurrence or to assault Parimal. The P.W. 3, the mother of Parimal, stated that at the relevant point of time she and her husband (P.W. 2) were suffering from illness and were in their house. The house of Santosh (P.W. 1) was situated one bigha of land away from their house. In her cross-examination, P.W. 3 stated that she was inside the room when Parimal cried aloud and after coming out of the room, she saw the local village people gathered at the spot and Parimal was lying on the ground. The house of Santosh (P.W. 1) was situated one bigha of land away from their house. In her cross-examination, P.W. 3 stated that she was inside the room when Parimal cried aloud and after coming out of the room, she saw the local village people gathered at the spot and Parimal was lying on the ground. The P.W. 3 has not stated anywhere that Santosh was found on the spot and that she found the assailants to assault Parimal and after assaulting him they fled away. It is also clear from her statement that when she reached the spot, she found some local people there. It makes clear that before the P.W. 3 reached the spot, local people already reached there. In other words, the P.W. 3 reached the spot at a belated stage and naturally, it was not possible for her to see who did what and who reached the place of occurrence at what time. But, she has not mentioned the name of the P.W. 1 as the person who reached the place of occurrence immediately after the incident. According to her, the P.W. 1 did not also went to the hospital. One Rajani, her elder daughter Shanti, son-in-law Ram Prosad went to Hospital and no one else. This fact, however, does not support the Exbt. 5 which says that Santosh brought and identified the injured in Hospital and narrated the incident of assault to the doctor. The P.W. 4 is the wife of the deceased. She stated that at the relevant time she was inside the room with her baby. Hearing cry of her husband, she came out of the room and saw her husband was lying on the ground and the appellants were assaulting him with iron rod. This fact that appellants assaulted Parimal with iron rod does not support the facts narrated by Santosh Roy to Dr. Subir Kumar Nandi, i.e., the P.W. 9. According to the Exbt. 5, the assailants assaulted Parimal with hands and pieces of bamboo. The P.W. 4 shouted aloud for help and local people rushed to the spot. She has not named the P.Ws. 1, 2 and 3 as the persons who rushed to the spot hearing hue and cry for help. Subir Kumar Nandi, i.e., the P.W. 9. According to the Exbt. 5, the assailants assaulted Parimal with hands and pieces of bamboo. The P.W. 4 shouted aloud for help and local people rushed to the spot. She has not named the P.Ws. 1, 2 and 3 as the persons who rushed to the spot hearing hue and cry for help. In the cross-examination, she, however, has stated that her father-in-law, i.e., the P.W. 2, came out of the room little before she could reach there and the P.W. 3 appeared in the scene little thereafter. This fact also does not support the statements of P.Ws. 2 and 3. The P.W. 4 in her cross-examination stated that she found Krishna, Dhalu, Dager, Suren, Subhas, Nagen, Setua, Kalia, Dhiren, Chayan Rava on the spot. She has also stated that she stated the Investigating Officer that she had baby with her and that is why she could not venture to go to the spot. She admitted about the criminal case between the two families. Amongst the persons named by the P.W. 4 and other witnesses, Anil Roy was examined as P.W. 5. He stated that he heard about the marpit between Parimal and Prafulla Roy near the house of Prafulla. That being hearsay evidence in nature, question of admitting the same and relying on the same does not arise. In his cross-examination he stated that he heard that Parimal fell down from a tree. That statement of the P.W. 5 cannot also be accepted being hearsay evidence. He has not mentioned anywhere from whom he received that information. The P.W. 6 was not at all present in the scene. He heard about the incident on the next date. He has not stated who reported him about the incident. Therefore, his evidence in examination-in-chief regarding the incident of assault was not admissible in evidence. No one has also come forward and stated that he informed the incident to the P.W. 6. The P.W. 6 had taken the injured to Hospital and that fact has been stated by the P.W. 3. The P.W. 6 also stated that he had been to North Bengal Medical College and Hospital. In his cross-examination, he stated categorically that he had no personal knowledge about the incident and he had no discussion about the patient with anyone. The P.W. 6 had taken the injured to Hospital and that fact has been stated by the P.W. 3. The P.W. 6 also stated that he had been to North Bengal Medical College and Hospital. In his cross-examination, he stated categorically that he had no personal knowledge about the incident and he had no discussion about the patient with anyone. He also stated that after admitting Parimal in the North Bengal Medical College and Hospital, he came back home on the next date and he again went to North Bengal Medical College and Hospital to bring back Parimal. Nowhere within the length and breadth of his deposition, the P.W. 6 uttered the name of the P.W. 1 as a person, who accompanied Parimal to the hospital or as a person who reported the incident to him. Amongst the local people, the P.W. 10, Krishna Roy, did not support the prosecution case. He was declared hostile by the prosecution. The P.W. 7 is the formal witness who prepared the First Information Report on the basis of the First Information Report received by the Alipurduar Police Station on 10.09.2005. The P.W. 8 is the A.S.I. of Police who performed inquest of the dead body of Parimal and identified his report, which was marked Exbt. 2. He stated in his cross-examination that he noted exact version of the witness present at the time of preparing inquest report and obtained their signatures. The exact version of the witnesses present was that Parimal climbed on a Gamari tree in the evening in intoxicated condition and fell down from the said tree approximately from a height of 20 ft. and received injuries and was taken to hospital on the next date. One of the witnesses of inquest was Ramprosad Adhikari, i.e., the P.W. 6. He, however, has not stated that he made this statement to the P.W. 8 at the time of inquest. He simply stated that police officer asked him about the incident at the time of preparing report of the dead body and asked him to sign on a paper. Accordingly, he put his signature on it. He denied that he made any statement to the effect that Parimal fell down from a Gamari Tree from a height of 20 feet and, as a result, sustained injuries on his head and chest. The P.W. 9, Dr. Accordingly, he put his signature on it. He denied that he made any statement to the effect that Parimal fell down from a Gamari Tree from a height of 20 feet and, as a result, sustained injuries on his head and chest. The P.W. 9, Dr. Subir Nandi, stated that he found swelling over the left side of the face and one swelling bruise mark over mid-frontal region of face. He did not found any other injuries on head or any part of the body. He opined that if a person fell from a certain height being interrupted by several branches of tree and then fell down on the ground, that type of injury might occur. The P.W. 11 is the scribe of the First Information Report. He has no knowledge, whatsoever, about the incident. The P.W. 12 is the Investigating Officer of the case and he stated categorically in his cross-examination that Munshipara Primary Health Centre was about 2 kilometers away from the house of the victim and Salkumar Police Post is about 1 to 2 k.m. away from that house. The P.W. 14 was Dr. Dibakar Chetri of North Bengal Medical College and Hospital, who conducted post mortem on the dead body of Parimal on 09.09.2005 and found (1) scalp haemotoma over both sides of parietal, temporal and frontal regions, (2) Fissured Fracture over right and left parietal bones extending to left temporal bone and left side of frontal bone and (3) Subdural hemorrhage over both sides of cerebral hemispheres. He did not accept the opinion given by the P.W. 9 that such type of injury could happen if one falls from a considerable height being interrupted by branches of tree. According to him, in that case, there should be some external injuries. Since it was not found, he did not like to agree with the opinion of the P.W. 9, Dr. Subir Nandi. The P.W. 15, Dr. Saibal Gupta, identified his signature on the Post Mortem Report. On careful scrutiny of the evidences recorded by the learned Trial Court it appears that there were some loose ends in the prosecution case, such as, inordinate delay in lodging the First Information Report even after death of Parimal, absence of the witnesses in the place of occurrence at the relevant time and witnessing the appellants to assault the deceased. On careful scrutiny of the evidences recorded by the learned Trial Court it appears that there were some loose ends in the prosecution case, such as, inordinate delay in lodging the First Information Report even after death of Parimal, absence of the witnesses in the place of occurrence at the relevant time and witnessing the appellants to assault the deceased. A second probable case also emerged from the evidence on record that Parimal on the relevant date, being intoxicated, climbed upon a tree and fell from that tree. The most important feature, which the learned Trial Court did not consider with attention, is that presence of witnesses at the time of occurrence and witnessing the appellants to assault Parimal. According to the P.W. 1, only he saw the appellants to assault Parimal because after assaulting Parimal, the appellants fled away. The P.W. 1 did not mention the presence of his father, mother and Parimal’s wife on spot. On the contrary, he mentioned the names of some persons who were not examined in course of trial as prosecution witnesses and only one of them who was examined, did not support the prosecution case. The presence of P.W. 1 on the spot was completely ignored by the P.Ws. 2, 3 and 4. According to the P.W. 2, the P.W. 1 appeared in the scene 4/5 minutes after the incident. According to him, he reached before the P.W. 1. The P.Ws. 3 and 4 did not utter the name of P.W 1 as a witness of the incident. The presence of the P.W. 1 in the scene appears to be doubtful. There are also material discrepancies in the statement of the P.W. 3 and the facts stated in the Exbt. 5. According to the P.W. 3, the mother of the victim, Santosh, the P.W. 1, had never been to hospital. Only three persons took the victim to the hospital. Out of them only P.W. 6 was examined and he was neither an ocular witness nor had any knowledge about the incident. He has not stated that P.W. 1 accompanied the injured to hospital. Only three persons took the victim to the hospital. Out of them only P.W. 6 was examined and he was neither an ocular witness nor had any knowledge about the incident. He has not stated that P.W. 1 accompanied the injured to hospital. The fact that the second probable story to the effect that Parimal was in intoxicated condition, climbed up a tree to cut branches but fell down therefrom and sustained injury, cannot be ruled out possibly because it was established by the evidence of the P.W. 9 and from the fact stated in the Exbt. 5 that Parimal was in intoxicated condition at the relevant point of time. The evidence of the P.W. 6 as well as the P.W. 8 supported that second story to some extent. The another factor which appears to be very important i.e., why Parimal was not taken to hospital on the date of incident which was only 2 kilometers away from his house on that particular evening although vans and rickshaws were available in the village? He was lying in unconscious state through out the night till the next morning, in his house. If local people gathered on the spot and P.W. 1 was present there, it is not understood why they could not take the injured to the Primary Health Centre, which was only 2 kilometers away from that house on that particular night. This question remained unanswered. This apart, there were criminal cases, which were lodged by the appellants against the family members of the injured. This might be the reason for implicating them in this case. When no one had seen the appellants to assault the victim Parimal or had seen them to escape from the place, it is really doubtful whether the prosecution version was correct or not. I have already found that there are many loose ends in the prosecution case and it is really doubtful that there is direct evidence, in true sense, that appellants have actually assaulted Parimal. The presence of Santosh Roy in the hospital and making a history of assault also was not supported by any other witness. The P.W. 3, denied that Santosh accompanied the injured to hospital. If so, why Santosh did not inform the facts to the police outpost which was 1-2 kilometers from his house on that particular night. The presence of Santosh Roy in the hospital and making a history of assault also was not supported by any other witness. The P.W. 3, denied that Santosh accompanied the injured to hospital. If so, why Santosh did not inform the facts to the police outpost which was 1-2 kilometers from his house on that particular night. The First Information Report was lodge after completion of post mortem as well as inquest of the dead body and that too, in the evening on the next date. Therefore, the prosecution case, no doubt, is suffering from serious infirmities and inconsistencies as well as improbabilities. The learned Trial Court did not take all these factors into consideration from that angle. Taking everything into consideration, I find that two possible views can be taken from the evidence on record – (1) that the appellants are innocent and (2) that they had committed the offence. The benefit of first view, which goes in favour of the appellants, should be given to them. Accordingly, the Court ought to have given the appellants benefit of doubt and acquitted them. In view of the discussion above, I am of the opinion that the prosecution failed to bring home the charge against the appellants to the hilt and beyond doubt. The appellant should be given benefit of doubt and acquitted from the charge. Accordingly, the appeal is allowed. The judgment impugned is set aside. The appellants be set at liberty at once and be discharged from their bail bonds, if any. This appeal, thus, stands disposed of. Interim order, if there be any, stands vacated. There will, however, be no order as to costs.