Judgment :- Sahidullah Munshi, J. This is an appeal against the judgment and order dated March 4, 2008/ March 5, 2008 passed by the Additional Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions Trial No.III(III) 07 arising out of Sessions Case No.4(12)06 convicting the appellant Prasanta Mondal alias Kanchiram under Section 304 Part-I of the Indian Penal Code. A written complaint was made by Shri Kanai Mondal, father of the victim Bharat Mondal, aged about 25 years on March 29, 1993 which was addressed to the Officer-in-charge, Tehatta Police Station, Nadia. On the basis of the said written complaint primarily FIR was drawn and Tehatta P.S. Case No.24/93 dated March 29, 1993 under Section 304 Indian Penal Code was started. In the written complaint the victim’s father made out a case that his son, namely, the victim had free mixing with the wife of Prasanta and that used to give rise quarrel off and on. On the fateful day, that is, on March 28, 1993 evening at about 7 p.m. Bharat went to the house of Prasanta when he was absent and his wife was alone. Thereafter, when Prasanta and few of his friends came and saw Bharat, a quarrel broke out and out of such quarrel Prasanta and his friends beat Bharat and he died. After enquiry, Police filed charge-sheet being Charge-Sheet No.4 dated January 5, 1996 against 3 accused persons, namely, i) Prasanta Mondal alias Kanchiram son of Basanta Mondal, ii) Nemai Sarkar, son of Ranjit Sarkar, iii) Dinesh Sarkar, son of Paresh Sarkar and iv) Bhela Sarkar, son of Jiten Sarkar. It may be mentioned that accused Nemai Sarkar, Dinesh Sarkar and Bhela Sarkar were acquitted under Section 232 of the Code of Criminal Procedure vide Order No.14 dated January 15, 2008. The appellant herein was found to be guilty of offence punishable under Section 304 Part-I of the Indian Penal Code and the learned Court of Sessions below, accordingly, convicted him under Section 235(2) of the Code of Criminal Procedure and sentenced the accused/appellant to suffer rigorous imprisonment for a period of 10 years and to pay fine of Rs.5,000/- (Five Thousand) only, in default, simple imprisonment for one year more. In order to prove its case, the Prosecution has examined as many as 8 witnesses and produced documents vide Ext.1 to 6. The Defence, however, did not examine anyone. In order to prove its case, the Prosecution has examined as many as 8 witnesses and produced documents vide Ext.1 to 6. The Defence, however, did not examine anyone. After the written complaint was received by the Police on March 29, 1993, sub-Inspector Subhas Roy and O.C. S.I. Nemai Biswas along with Police force went to the house of Prasanta Mondal alias Kanchiram and undertook to prepare Surathal Report on the dead body of the deceased, Bharat Mondal, at about 10 a.m. On a primary investigation it appeared to the Police that the deceased Bharat had illicit relation with appellant’s wife. According to such investigation the Police was of the opinion that on 28.03.1993 in the evening there was a quarrel between Bharat and appellant and his companions and Bharat was murdered during altercation. Post Mortem was caused by the doctor and the Post Mortem report shows that death was caused due to ante mortem head injury resulting from impact with soft blunt and moderately heavy object. It was opined that nature of death was to be determined by circumstantial evidence. Kanai Chandra Mondal, PW1 deposed on April 26, 2007 after a period of about 14 years from the date of occurrence. He said “Bharat, now deceased, was my son who was murdered for about 14 years back while he was at the age of 22 years. There was a ‘gondogol’ in between Prasanta Mondal and my said son as regards to money. I have also not heard any other incident in between them.” He deposed … “Thereafter, I rushed to the house of Prasanta who pushed me aside and fled away from that place and I found my son was lying with ligature mark on his neck and I had not seen any mark of cut injury on his person. I have seen my son in the light of lamp (objected to). The said lamp was burning on the Verandah of the house of Prasanta. Then I raised alarm.” In the cross-examination the PW1 stated that “I stated in my petition of complaint that at the relevant time the age of my said son was 25 years. I did not state in the petition of complaint or before the I.O. that there was a ‘gondogol’ in between my son and the accused Prasanta Mondal.” The above evidence of PW1 raises suspicion about the incident. I did not state in the petition of complaint or before the I.O. that there was a ‘gondogol’ in between my son and the accused Prasanta Mondal.” The above evidence of PW1 raises suspicion about the incident. The evidence of PW1 does not corroborate the case made out in the complaint; rather it contradicts the same. Even in the Examination-in-Chief it is found that the PW1 has brought a new case about the money which was never stated in the complaint and in the cross-examination he says that there was a '‘gondogol’ with regard to money in between his son and the said Prasanta/accused appellant herein. It is also not clear from the deposition of PW1 as to how he identified the accused appellant who, according to PW1, pushed him and fled away. In his Examination-in-Chief he has said that there was a lamp on the Verandah of the appellant and with the light of that lamp he identified the victim but nothing has been suggested as to the said lamp and whether its light was sufficient to identify the accused appellant. Therefore, the evidence of PW1 is not at all reliable in order to confirm the order of conviction inflicted upon the accused/appellant. PW2, Ananda Sarkar is a neighbour of the complainant and he knew the victim. He heard about the incident from the father of the victim and wrote the petition of complaint as per instruction of PW1 Kanai Chandra Mondal. This witness has merely written the complaint and he has no personal knowledge about the incident. His evidence is not of much importance. PW3, Sambhu Mandal is the uncle of the victim. While deposing on April 26, 2007, he says that his brother’s son Bharat was murdered in the month of ‘Chaitra’ about 13/14 years back at about 7 p.m. He rushed to the place of occurrence after hearing hue and cry and, thereafter, found the victim lying outside the door of the ‘ghar’ on the verandah. He heard his brother PW 1, the de facto complainant, saying that Prasanta alias Kanchiram was fleeing away from the place after murdering his son, that is, the victim. He says - “…At that time Police seized one read colour thread along with one ‘Maduli’ which was inside the wrist of Bharat in my presence then Police seized the same under seizure list. He says - “…At that time Police seized one read colour thread along with one ‘Maduli’ which was inside the wrist of Bharat in my presence then Police seized the same under seizure list. This is my signature appearing in the seizure list and this be marked as Ext. 2/1. I have not seen the said ‘Maduli’ along with read thread in the body of any other person in our village…” In the cross-examination the said Sambhu Mondal says he was not examined by the I.O. in connection with this case and for the first time he deposed before the Court. In cross-examination he says – “I do not know whether the wife of Prasanta was arrested by the Police in connection with this case. Not a fact that I had not seen the said ‘Maduli’ along with read colour thread in the wrist of Bharat, now deceased. I do not know whether Bharat went to the house of Prasanta for committing rape forcibly upon his wife in absence of Kanchiram and other inmates. Not a fact that I am deposing falsely being tutored witness.” This witness has no personal knowledge about the assault on the victim, about the illicit relationship, if any, in between the victim and the wife of the accused nor even any other reason for which there could have been possibilities of assault upon the victim by Prasanta or his associates. Whatever he deposed is hearsay evidence. From the version of this witness it does not appear that he could identify the person who committed assault upon the person of the victim. He could not throw any light about the presence of the assailant at the spot, far less to say that the assailant was Kanchiram alias Prasanta. PW 4 Shri Birendra Nath Sarkar knew the victim as a co-villager. He found the dead body of the victim lying on the verandah of the ‘ghar’ of Kanchiram. He has no knowledge as regards the cause of death of the victim. This witness was declared hostile by the Prosecution. On the cross-examination made by the Prosecution he stated “I had been examined by the I.O. in connection with this case. He found the dead body of the victim lying on the verandah of the ‘ghar’ of Kanchiram. He has no knowledge as regards the cause of death of the victim. This witness was declared hostile by the Prosecution. On the cross-examination made by the Prosecution he stated “I had been examined by the I.O. in connection with this case. Not a fact that I stated before the I.O. that Prasanta alias Kanchiram found Bharat at his house and assaulted him mercilessly.” On the cross-examination made on behalf of the accused he says “I cannot say whether the wife of Prasanta was arrested by the Police in connection with this case. The evidence of this witness is not worthy of any credit. PW 5, Mangal Chandra Sarkar, is a co-villager of the victim. He said that he does not know the persons who murdered Bharat and he did not enquire about the said occurrence also. Prosecution declared him as a hostile witness and on the cross-examination made by the Prosecution this witness stated that – “Not a fact that I stated before the I.O. that on hearing the news I rushed there and found the dead body of Bharat was lying on the verandah of the house of Prasanta alias Kanchiram or that the father of Bharat named Kanai Mondal reported that his son Bharat was assaulted by Prasanta and his friends.” He further says – “I cannot remember whether anything was seized by the I.O. in my presence from the P.O.” He further says – “Not a fact that the Police seized any read thread along with ‘Maduli’ from the wrist of Bharat from the P.O. in my presence. This is my signature appearing in the inquest report and this is marked as Ext. 3/2.” On the cross-examination made on behalf of the accused this witness said – “I have signed in the documents at the P.S. Prasanta has one son and one daughter. I cannot say whether the wife of Prasanta was arrested by the Police in connection with this case.” Deposition of this witness during cross-examination made by the Prosecution shows that there was no seizure of any ‘Maduli’ with read thread from the wrist of Bharat. Answer to the question put forward by the Prosecution goes against and it casts a doubt about the seizure of the said ‘Maduli’. Answer to the question put forward by the Prosecution goes against and it casts a doubt about the seizure of the said ‘Maduli’. PW 6, Shri Bimal Kumar Ghosh, ASI of Police, deposed that on March 29, 1993 on the date of occurrence he was posted at Tehatta Police Station. He received a written complaint from PW 1, Kanai Mondal, and started Tehatta P.S. Case No.24/93 dated March 29, 1993. He identified his endorsement appearing on the petition of compliant which was marked Ext. 1/2. On being recalled this witness stated that the wife of Kanchiram, the appellant herein, was not the accused but on seeing the formal FIR (Ext. 4), he stated that the name of the wife of the accused Kanchiram alias Prasanta was mentioned in the column of accused. PW 7, Subhas Roy deposed on July 21, 2007 and submitted that he was posted at Ranaghat Police Station as Sub-Inspector of Police. On the date of occurrence, that is, on March 28, 1993 he was posted at Tehatta Police Station as Sub-Inspector of Police. In his Examination-in-Chief he stated that he visited the place of occurrence, examined the available witnesses under Section 161 Cr.P.C. and seized one ‘Maduli’ under proper seizure list and also held inquest over the dead body of the victim Bharat Mondal. The seizure list (Ext. 2) was identified and forwarded to the learned Court and after completion of investigation charge-sheet was submitted against 4 accused persons for the offence punishable under Section 304 IPC on January 5, 1994. He stated that he examined PW 4 Birendra Nath Sarkar who stated before him that Prasanta alias Kanchiram found Bharat at his house and assaulted him mercilessly. However, this witness (PW4) was declared hostile by the Prosecution. He stated that he examined PW 5 Mangal Chandra Sarkar who stated before him that hearing the news he rushed there and found the dead body of Bharat which was lying on the verandah of the house of Prasanta alias Kanchiram and the father of Bharat named Kanai Mondal stated that his son Bharat was assaulted by Prasanta and his friends. This witness (PW 5) was also declared hostile by the Prosecution. PW 7, in his cross-examination on behalf of the accused, stated that he arrested the wife of Kanchiram who was named as accused in the formal FIR. This witness (PW 5) was also declared hostile by the Prosecution. PW 7, in his cross-examination on behalf of the accused, stated that he arrested the wife of Kanchiram who was named as accused in the formal FIR. He, however, stated that there was no allegation against the said wife but in the FIR it was mentioned that Prasanta and his friends assaulted Bharat. It has been stated by PW 7 that during investigation he came to know that the wife of Kanchiram had illicit relationship with the victim Bharat. This witness (PW 7), however, in his cross-examination stated – “I cannot say why and how name of the wife of Kanchiram has been mentioned in accused column but recording officer can say this. I do not find the sketch map of the P.O. in the C.D. but the specification of the P.O. has been mentioned in the C.D. not a fact that the FIR of this case was changed, thereafter, as per my instruction. Not a fact that actually the wife of Kanchiram was the accused for murdering of Bharat and only to save the wife of Kanchiram, Kanchiram has been implicated in this case.” PW 7, being the Investigating Officer, has failed to establish if it is Kanchiram alias Prasanta who caused the victim’s death by mercilessly assaulting the victim or whether any other persons mercilessly assaulted the victim on the instruction of the accused Prasanta. PW7 has not disclosed if there was any other eye witness who could depose that assault was committed upon the person of the victim by accused Prasanta or other co-accused persons. There could be no cogent reason for Prasanta to commit such assault resulting death of Bharat. The Prosecution, in order to prove their case, relied on PW 4, Birendra Nath Sarkar and PW 5, Mangal Chandra Sarkar but they had to be declared hostile, being found not reliable at the dock. PW 8, Dr. Gautam Sannyal, deposed on December 11, 2007 and stated that he was posted at Hooghly district hospital at Chinsurah as Medical Officer. On March 30, 1993 he was posted at district hospital Krishnagar, Nadia as Medical Officer and held Post Mortem over the dead body of the victim, 25 years of age in connection with Tehatta P.S. Case No.24/93 dated March 29, 1993 and the dead body was identified by Constable No.971, Shyamal Tarafdar. On March 30, 1993 he was posted at district hospital Krishnagar, Nadia as Medical Officer and held Post Mortem over the dead body of the victim, 25 years of age in connection with Tehatta P.S. Case No.24/93 dated March 29, 1993 and the dead body was identified by Constable No.971, Shyamal Tarafdar. On examination he found various injuries like 1) Abrasion (I) 3” x 1% below the lateral to right eye. II) 1” x 1” lateral to right angle of mouth. 2) Evidence of bleeding from nose, mouth and right ear. He found haematoma on dissection in both partial lobes of the brain near midline and base of brain. According to his opinion, death was caused due to ante mortem head injuries resulting from impact with soft blunt and moderately heavy object and that cause for death was to be determined by circumstantial evidence. Post Mortem report was marked Ext.6. After scanning through the evidence adduced by the Prosecution witnesses and on perusal of the record it appears that the Prosecution has failed to prove its case beyond all reasonable doubt. Record reveals that Prosecution relied on the evidence of PW1, the complainant, but it appears that the PW1, while deposed, has totally made out a different case after 14 years than what he made out in his written complaint. PW1 is Kanai Chandra Mondal, father of the victim Bharat. His evidence, instead of corroborating the case made out in the complaint, has contradicted the same. In the Examination-in-Chief, as it is found, the PW1 has brought out a new case about money which was never stated in the complaint and in the cross-examination he only says that there was a ‘gondogol’ with regard to money in between his son and the accused, appellant herein. Another aspect is very important to take note of, that is, PW1 went to the place of occurrence first. He is the first person who discovered Bharat to be dead. From the trend of the Prosecution witness it appears that they sought to establish that PW1 was a eye witness but fact remains that from his deposition it does not appear that he identified the accused. He identified the victim with the scanty amount of light of a lamp which was kept on the verandah. PW1, in his deposition, stated that accused pushed him aside and fled away. He identified the victim with the scanty amount of light of a lamp which was kept on the verandah. PW1, in his deposition, stated that accused pushed him aside and fled away. There was no one other than PW1 at that time. In the whole evidence we do not find any existence of any other lamp, save and except the one by the light of which PW1 identified the victim and whether the light of the said lamp was sufficient to identify the accused, has not been explained. It is doubtful whether he really identified the accused Prasanta. If at all somebody pushed him aside whether he was the accused Prasanta or some other person, is not clear from the description given by the witness. Therefore, this question of identification of the accused by PW1 is not beyond any doubt and it cannot be believed that in the evening at 7 p.m., in the month of March, the witness could identify a person without additional light. The Prosecution relied on two other witnesses PW3 and PW4 much to prove their case. It appears that PW3, Sambhu Mondal, did not see anything of his own. His evidence is a hearsay evidence as he acquired knowledge about the incident being reported to him by his brother PW1, the father of the victim. He has no personal knowledge about the incident and also about the accused Prasanta’s fleeing away from the place of occurrence as it was reported to him by PW1. PW4, Shri Birendra Nath Sarkar, also did not give any light as regards the commission of offence by accused, Prasanta. However, because of the trend of his deposition, he was declared hostile by the Prosecution. In his cross-examination he stated that he was examined by the Investigating Officer in connection with the case but it was not a fact that he stated before the Investigating Officer that Prasanta alias Kanchiram found Bharat at his house and assaulted him mercilessly. This being the position, deposition of this witness is of no help in accusing Prasanta for commission of the alleged offence. PW5, Mongal Chandra Sarkar stated that he never knew any person who murdered Bharat and he did not enquire also about the said occurrence. This being the position, deposition of this witness is of no help in accusing Prasanta for commission of the alleged offence. PW5, Mongal Chandra Sarkar stated that he never knew any person who murdered Bharat and he did not enquire also about the said occurrence. He was also declared hostile and this witness also does not help the Prosecution to come to a conclusion about the commission of offence by the accused, Prasanta. The important feature in this case is that the post mortem doctor, PW8, Dr. Goutam Sanyal stated in his deposition that death was caused due to ante mortem head injuries resulting from impact with soft, blunt and moderately heavy object. He further opined that the cause of death was to be determined from circumstantial evidence. The post mortem report clearly suggested the cause of the death by a blunt and moderately heavy object but the Prosecution could not recover any such offending article/weapon which caused the death of the victim. This being the situation it cannot be held that the Prosecution has proved the case beyond all reasonable doubt and that the learned trial Court has rightly punished the accused. In inflicting punishment upon the accused the learned trial Court has not only dealt with the evidence in a casual manner but it appears that it has overlooked the fact that there is no eye witness of the incident and the circumstantial evidence also could not corroborate the case made out in the complaint. The incidents narrated in the complaint or in the deposition are not sufficient to hold conclusively the commission of the offence at the instance of the accused and, therefore, the accused deserves an Order of acquittal and is, thus, acquitted of the punishment imposed upon him under Section 304 Part-I of the Indian Penal Code and, consequently, the Order of punishment passed under the judgment and Order under appeal punishing the accused under Section 304 Part-I of the Indian Penal Code is set aside and the accused is set free. The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.