Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 699 (CAL)

Swapan Roy v. State of West Bengal

2015-08-20

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2015
JUDGMENT : Sankar Acharyya, J. This appeal has been directed against judgment and orders of conviction and sentence dated 24.04.2014 passed by learned Additional Sessions Judge (Re-designated) Court, Bankura in Sessions Trial No. 04(01)13 arising out of Sessions Case No. 06(05)12. In the said case three accused persons namely, Swapan Roy (appellant herein), Nitya Gopal Roy and Fatik Roy were made accused and a charge under Section 307/34 of the Indian Penal Code (in short I.P.C.) was framed against all of them. During trial, state respondent as prosecution examined fourteen witnesses namely, Soutam Mandal (elder brother of the injured victim) as PW 1, Somnath Mallick (declared hostile) as PW 2, Bhaskar Chandra Mandal (cousin of PW 1 and victim PW 11) as PW 3, Biswanath Mandal (owner of car by which victim was taken to hospital) as PW 4, Swajal Kumar Mandal as PW 5, Tapan Bauri as PW 6, Swapan Bauri as PW 7, Genubala Mandal (mother of injured victim and informant) as PW 8, Anup Kumar Mandal as PW 9, Biswarup Karmakar as PW 10, injured victim Krishna Mandal as PW 11, first Investigating Police Officer (in short first I.O.) sub-Inspector Gokul Chandra Ruidas as PW 12, Dr. Ganesh Kumar (Neuro-surgeon) as PW 13 and second Investigating Police Officer (in short second I.O.) sub-Inspector Soumitra Rajak as PW 14. In addition to the oral evidence of said fourteen witnesses the prosecution also adduced documentary evidence such as written complaint (written FIR) as exhibit- 1, signature of informant (PW 8) on exhibit- 1 as exhibit- 1/1, endorsement on exhibit- 1 as exhibit-1/2, formal FIR as exhibit- 2, hand sketch map with index of the place of occurrence (in short P.O.) as exhibit- 3, one discharge certificate of PW 11 dated 29.06.2010 as exhibit- 4 and another discharge certificate of PW 11 dated 29.09.2010 as exhibit- 5. Accused persons were examined under Section 313 of Code of Criminal Procedure, 1973 (in short Cr.P.C.). They did not adduce evidence. In the impugned judgment accused Swapan Roy (appellant herein) has been convicted of charge under Section 307 of the Indian Penal Code and sentenced to suffer life imprisonment. Accused persons were examined under Section 313 of Code of Criminal Procedure, 1973 (in short Cr.P.C.). They did not adduce evidence. In the impugned judgment accused Swapan Roy (appellant herein) has been convicted of charge under Section 307 of the Indian Penal Code and sentenced to suffer life imprisonment. Other two accused persons namely, Nitya Gopal Roy and Fatik Roy have been convicted of an offence punishable under Section 341/34 of the Indian Penal Code and sentenced to suffer simple imprisonment for one month each and to pay fine of Rs.500/- each in default of payment of fine to suffer simple imprisonment of fifteen days. This appeal has been preferred by appellant Swapan Roy alone and not by Nitya Gopal Roy and Fatik Roy. The case of the prosecution in the Trial Court is based upon the written FIR lodged by PW 8 at Gangajal Ghati Police Station on 04.06.2010 alleging an occurrence of 30.05.2010 at 08:30 p.m. Initially, the case was started under Sections 341/326/34 of the Indian Penal Code at Gangajal Ghati Police Station and after investigation PW 14 submitted charge-sheet against all the three above named accused persons under Section 341/326/307/34 of the Indian Penal Code. Prosecution case according to factual matrix in succinct is that PW 11 (injured victim) and his mother (PW 8) were gossiping in the first floor of their house at village Dethol (about 15 km away from police station) on 30.05.2010 at about 08:30 p.m. (night). At that time PW 2 called PW 11 when PW 11 went out of the building and they were talking in front of their outer door. PW 11 watched it through window of the first floor. Then the appellant came and assaulted on the head of PW 11 by a bamboo stick (lathi) with intention to commit murder when other two accused persons were instructing the appellant from a distance of 25-30 cubits of PW 11 to kill PW 11. The PW 8 came to the ground floor and found PW 11 with bleeding injury on his head lying in front of the door. PW 3 came to the road from his house. PW 2 was standing near PW 11. The PW 8 and others shouted. Accused persons took to their heel. PW 2 lifted PW 11 when PW 11 started vomiting. PW 3 came to the road from his house. PW 2 was standing near PW 11. The PW 8 and others shouted. Accused persons took to their heel. PW 2 lifted PW 11 when PW 11 started vomiting. The PW 11 was taken to Durgapur Main Hospital first where no accommodation for treatment of such patient was found and then to Bidhannagar Vivekananda Hospital at Durgapur where he was treated medically as he was fighting with death. Stating such reasons the delay in lodging FIR has been explained. Defence case of the accused persons including the appellant as disclosed during trial is total denial of involvement of accused persons about any injury of PW 11. Accused persons claimed themselves as innocent and their false implication in the case. They have not denied injury and treatment of PW 11 but according to them, such injury of PW 11 might have been caused due to fall from stair case of their house. We have gone though the materials available in the Lower Court Records (L.C.R. in short). In the petition of appeal, contending inter alia, the impugned judgment has been assailed in substance as bad in law and facts for material discrepancies in the evidence of witnesses, perfunctory investigation of the case, absence of proper explanation of delay in lodging FIR etc. Appellant has prayed for setting aside the impugned judgment and claimed his acquittal. Point for decision Is the impugned judgment with orders of conviction and sentence liable to be set aside? Decision Some undisputed or well established facts of the case are that on 30.05.2010 at about 8:30 p.m. in the night PW 11 sustained grievous hurt on his head and he was removed to Durgapur in that night for treatment where he survived receiving medical treatment including two major operations at Bidhannagar Vivekananda hospital. In the impugned judgment this appellant has been convicted and sentenced with finding that he is guilty of the charge under Section 307 of the Indian Penal Code but the other two accused namely, Nitya Gopal Roy and Fatik Roy have been found not guilty of the charge under Section 307/34 of the Indian Penal Code and instead of that charge said two accused persons have been convicted and sentenced of an offence punishable under Section 341/34 of the Penal Code. At first, we like to deal with a significant aspect that State prosecution tried to prove during trial that all the three accused persons came to the place of occurrence with common intention of causing hurt to PW 11 in order to commit murder to PW 11. But the learned Judge in the Trial Court has not believed the said intention of accused Nitya Gopal Roy (brother of appellant) and Fatik Roy (father of appellant) but has believed their presence with common intention, excluding the appellant, of committing wrongful restraint to PW 11. According to the case of FIR, the appellant assaulted PW 11 with bamboo lathi and the other two accused persons were standing 25-30 cubits away from the place of assault. Naturally question comes up as to when Nitya Gopal and Fatik had no common intention with the appellant to cause hurt to PW 11 why said two accused persons jointly intended to restrain PW 11. Within four corners of the materials brought on record no satisfactory explanation on the part of state prosecution is available. It may be mentioned here that prosecution has not adduced any evidence that said two accused persons were armed with any weapon at that time. We have gone through the rough sketch map with index of the place of occurrence and its surroundings which has been marked exhibit- 3. It appears from exhibit- 3 that there are three katcha houses of the accused persons (shown as ‘k’) at a considerable distance towards Southwest from the pucca dwelling house of PW 1, PW 8 and PW 11 intervened by village road. Place of occurrence has been shown by letter ‘L’ at the south-west corner point outside the dwelling house of PW 1, PW 8 and PW 11. Entrance door of their dwelling house (marked letter ‘E’ in exhibit- 3) is at some distance towards south of the place of occurrence. Outer doors of their residential building have been shown in the drawing as situated on the western wall in the ground floor of the building and to the further west of the building there is a vacant passage and then the village road in situated. From the topography and index of exhibit- 3 it seems that the entrance gate (door) (letter ‘E’) is less than 25-30 cubits from the place of occurrence (letter ‘L’). From the topography and index of exhibit- 3 it seems that the entrance gate (door) (letter ‘E’) is less than 25-30 cubits from the place of occurrence (letter ‘L’). Prosecution has not adduced any evidence regarding distance from place of occurrence to the entrance gate of the house premises or to the village road or to the houses of accused persons. It further seems to us that according to interpretation of the version of FIR the other two accused persons who have been convicted under Section 341/34 of the Indian Penal Code did not enter in the house complex of PW 1, PW 8 and PW 11. Rather, it is absolutely improbable that said two non-appellant accused persons really restrained the PW 11 wrongfully during the occurrence because entrance door in the ground floor of the house is far less than 25-30 cubits from ‘L’ marked place of occurrence as per exhibit- 3. In a criminal trial in respect of a ‘fact’ the prosecution should prove it happened as ‘must’ and not ‘may’ but the defence may establish it as ‘not a fact’ by preponderance of probability in order to dislodge the allegation of fact made by prosecution. In the instant appeal although, Nitya Gopal Roy and Fatik Roy are not appellants but we find the finding of learned Trial Judge about presence of said two accused persons in the scene of occurrence at the relevant time is erroneous as the learned Court below failed to consider the material evidence discussed above. We therefore, differ with the decision of the learned Court below about conviction and sentence of Nitya Gopal Roy and Fatik Roy as observed in the impugned judgment. In the impugned judgment learned Additional Session Judge has believed that the delay in lodging FIR (First Information Report) at Gangajal Ghati Police Station has been explained properly by PW 8 and in her evidence with findings inter alia that it is quite unbelievable that even when the victim (PW 11) was fighting for his life, his relatives partulcarly the mother (PW 8) of the victim would falsely entangle the three accused persons, though the victim sustained injuries due to fall from staircase as alleged by defence. On this point learned Advocate Mr. Chatterjee on behalf of the appellant has vehemently opposed the findings. On the other hand, Mr. On this point learned Advocate Mr. Chatterjee on behalf of the appellant has vehemently opposed the findings. On the other hand, Mr. Banerjee, learned Advocate for the State respondent has supported the findings of learned Trial Court. He has drawn our attention to the last part of FIR (exhibit- 1) and to the evidence of PW 1 and PW 8, On going through the exhibit- 1 it appears that the complaint (FIR) has been written by PW 1 on papers, which are ordinarily used in Courts (Judicial Executive and Revenue) and in office of registration of deeds, and not on plain papers. Time of receiving the complaint on 04.06.2010 at Police Station has not been mentioned by concerned Police Officer in his endorsement but a gap has been left about the time as if it would be conveniently filled up later but not actually filled up. It reveals from oral testimony of PW 1 that exhibit- 1 was written in their house as instructed by PW 8 on 03.06.2010 but it was submitted at Police Station by PW 8 on 04.06.2010. There is no explanation in exhibit- 1 or depositions of PW 1 and PW 8 as to why exhibit- 1 was not submitted at Police Station on 03.06.2010. However, from the explanation in exhibit- 1 and evidence of PW 8 and PW 1, the delay in lodging FIR was caused due to mental disturbance of PW 8 and others on the physical serious condition of PW 11. This explanation has been believed by learned Trial Judge as sufficient in favour of the prosecution but there is no discussion in the impugned judgment as to how and wherefrom the special papers for writing the exhibit1 was collected and why the complaint (FIR) was not lodged at Police Station on 03.06.2010 by PW 8 after writing it in their house. Expectedly, it ought to have been discussed in the impugned judgment. In our view, there is possibility of delay in lodging exhibit- 1 at Police Station due to mental upset condition of PW 8 which goes in favour of state prosecution. Equally, it is also possible that an afterthought story about injury of PW 11, received in the night of 30.05.2010, has been made out in exhibit-1 implicating the accused persons as authors of committing injury of PW 11 which goes in favour of defence against prosecution. Equally, it is also possible that an afterthought story about injury of PW 11, received in the night of 30.05.2010, has been made out in exhibit-1 implicating the accused persons as authors of committing injury of PW 11 which goes in favour of defence against prosecution. In the eye of law, when there are two equal possibilities one in favour of prosecution and another in favour of accused then the later should be accepted for extending benefit of doubt in favour of accused persons. As such, in this matter also we cannot concur with the findings of learned Trial Judge made in pages 16 and 17 of the impugned judgment. We do not rule out the arguments of Mr. Chatterjee, learned Advocate that instead of prompt reporting of the incident at Police Station the inmates were very much interested in preparation of a complaint with concocted story by deliberation against accused persons. We, therefore, do not accept that prosecution has successfully explained the delay in lodging FIR. In the impugned judgment learned Judge in the Court below has compared two possibilities about injury of PW 11. It is definite case of prosecution that the appellant assaulted PW 11 with bamboo lathi and another is apprehension of receiving injury by PW 11 due to fall from stair case. It is pertinent to mention that it is not the definite case of the accused persons that PW 11 fell down from staircase but it is their surmise because PW 2 has given such indication in his evidence. It is the burden of prosecution to prove the said specific case of assault on PW 11 by appellant with bamboo lathi beyond reasonable doubt on the strength of its own and not on failure to prove the apprehension of accused persons. In the impugned judgment learned Additional Session Judge has not found any reason of false implication of the accused persons by mother (PW 8) of the injured (PW 11) but has also not come to the conclusion as to why the accused persons, being neighbours of PW 11 attacked PW 11 with intention to commit murder in presence of a witness (PW 2) in the early night when there is no prior enmity between them established either by proof beyond reasonable doubt or by preponderance of probability. Now, we intend to re-appreciate the evidence adduced by prosecution during trial. Now, we intend to re-appreciate the evidence adduced by prosecution during trial. PW 11 is the most vital witness of the prosecution. PW 1 is his brother, PW 8 is his mother and PW 3 is his cousin brother. Excepting said four witnesses no other witness has deposed in favour of the prosecution case to accuse the appellant or his brother and his father about any assault upon PW 11. As such, relating to the alleged occurrence no independent witness has supported the prosecution case on controversial point of assault on PW 11. From the medical evidence of PW 13 and exhibits 4 and 5 we do not find more than one external injury on the persons of PW 11. There is no whispering in exhibit- 1 (FIR) about presence of PW 1 in the scene of occurrence till removal of PW 11 from the alleged place of occurrence to Durgapur hospital. But PW 1 has claimed himself as eye-witness of the incident of assault by appellant to PW 11 as if he saw that the appellant was assaulting PW 11 and on his appearance at the place three accused persons fled away. According to PW 1, he went to the place of occurrence after hearing hue and cry. According to exhibit- 1, the PW 8 watched through a window of their house that the appellant assaulted by bamboo lathi on the head of PW 11 when PW 8 came to the place of occurrence and PW 3 also came to the village road at that time when he witnessing the incident of assault rushed to PW 11 and then the accused persons fled away on raising hue and cry by PW 8 and PW 3. As such, if we believe that PW 1 came to the place of occurrence hearing hue and cry, then it was not possible for him to see any incident of assault on PW 11 or fleeing away of accused persons. During cross-examination the PW 1 has stated that after going to the place of occurrence he saw PW 11 was lying on the ground with bleeding injuries. During cross-examination the PW 1 has stated that after going to the place of occurrence he saw PW 11 was lying on the ground with bleeding injuries. Although, according to exhibit- 1, the PW 2 remained all along at the place of occurrence till removal of PW 11 towards hospital by Ambassador car of PW 4 but PW 1 has stated in his cross-examination that on that day he did not meet Somnath Mallick (PW 2). He has also stated that he saw PW 2 was nursing PW 11 immediately after the incident. This PW 1 has stated that he admitted PW 11 in hospital but he did not state to the doctors as to how PW 11 sustained injury and who caused injury of PW 11. In our view, the totality of evidence of PW 1 regarding the cause of injury of PW 11 speaks no knowledge of PW 1. Therefore, his evidence against the accused persons is neither intrinsically reliable nor inherently probable. Rather, we find an attempt of PW 1 to make improvement of the case made out in the FIR (exhibit- 1). During examination-in-chief, the PW 2 has stated in substance that he went to the house of PW 11 in the night at about 8:30 p.m. on 30.05.2010 for inviting PW 11 to attend marriage ceremony of PW 2. On call of PW 2 the PW 11 attended the call and then PW 2 invited PW 11 and returned and he does not know what happened thereafter. This PW 2 was cross-examined on behalf of prosecution with the permission of Court. During such cross-examination he was suggested that he made statement before police that in the main entrance of the house of PW 11 the accused persons attacked PW 11 and the appellant assaulted repeatedly on the head of PW 11 with a bamboo lathi and Krishna fell down due to assault on the road with bleeding injury when PW 2 tried to resist the appellant and raised hue and cry hearing which the inmates of the house of PW 11 and neighbouring persons rushed to that place when the accused persons fled away but PW 2 denied said suggestions. During his cross-examination by defence the PW 2 has stated that on his call, PW 11 came from upstairs and receiving the invitation card PW 11 proceeded towards up stair and PW 2 went away from that place. He heard a sound of falling human body and a voice “Ma Go” (Oh! mother). PW 2 came back and found PW 11 under the stair case when PW 2 nursed him and hearing his hue and cry the inmates of the house of PW 11 and some neighbours came to the spot. He has also stated that the staircase of the house of PW 11 is towards outside and at the relevant time light was off. PW 2 has in substance supported the fact that he went to the house of PW 11 for inviting him to attend the marriage ceremony of PW 2 which portion of his evidence supports the prosecution. Prosecution has tried to establish through PW 2 that the appellant assaulted PW 11 repeatedly which has been denied by him and the medical evidence adduced by prosecution also does not speak of repeated blow on the head of PW 11. But it has been proved by PW 2 that he raised hue and cry first after receiving head injury of PW 11 and hearing his hue and cry the inmates of the house of PW 11 and others reached the spot. Though PW 2 the prosecution has tried to prove that PW 11 fell down on the road after receiving injury which has been denied by PW 2. Significantly, said attempt of prosecution goes against prosecution evidence exhibit- 3 which says the place of occurrence is not on road but contiguous to the residential building of PW 11. It is also significant to note that according to PW 2, the stair case of the house of PW 11 is towards outside which indicates that in exhibit- 3 also the place of occurrence has been rightly drawn near the staircase of the house of PW 3 although the exact location of the staircase has not been shown in exhibit- 3. Prosecution has also not adduced evidence, through other PWs, who have been examined subsequent to recording evidence of PW 2, to prove exact location of the staircase controverting PW 2 and exhibit-3. Prosecution has also not adduced evidence, through other PWs, who have been examined subsequent to recording evidence of PW 2, to prove exact location of the staircase controverting PW 2 and exhibit-3. Said circumstances go against allegation of assault on PW 11 by appellant as the place of occurrence shifts. It is pertinent to mention that according to PW 3, the PW 11 was lying with bleeding injury in front of the main entrance at a distance of about 30 cubits away from the house of PW 11. In exhibit- 3 the main entrance of the house premises has been shown by letter ‘E’ and according to exhibit- 3 there is a vacant passage in between the village road and main entrance of the house in front of that entrance (letter ‘E’). Place of occurrence (letter ‘L’) has not been shown in front of the gate (letter ‘E’). PW 3 has indicated the place of occurrence other than the place appears in evidence of PW 2 and exhibit- 3. According to PW 3, he is post-occurrence witness. He heard from his house a hue and cry and coming out of his house he found that the appellant was fleeing away from the house and two others whom PW 3 could not identify were also fleeing away from that place. Then he went in front of the main entrance of the housed of PW 1, PW 8 and PW 11 and found PW 11 was lying with bleeding injury and PW 2 was embracing PW 11 putting his hand on the head injury of PW 11. Exhibit- 3 contradicts PW 3 by the statement that PW 3 saw the appellant was assaulting PW 11 which is not claimed by PW 3 and on shouting of PW 8 and PW 11 the three accused persons ran away. We like to reiterate that according to PW 3, he does not claim as eye-witness of any incident of assault on PW 11 and identification of the brother and father when they fled away from the place. Undisputedly, PW 4 by his Ambassador car took PW 11 to hospital on 30.05.2010. PW 5 has stated nothing in favour of prosecution although he was examined and also cross-examined by the prosecution with permission of Court. PW 6 has also been examined and cross-examined by prosecution with permission of the Court. Undisputedly, PW 4 by his Ambassador car took PW 11 to hospital on 30.05.2010. PW 5 has stated nothing in favour of prosecution although he was examined and also cross-examined by the prosecution with permission of Court. PW 6 has also been examined and cross-examined by prosecution with permission of the Court. He has stated that appellant assaulted PW 11 and PW 11 sustained bleeding injuries on head. According to PW 8 he went to the place of occurrence after hearing hue and cry and saw that PW 11 was lying on the village road near his main entrance. His evidence is also contradicted by exhibit- 3 regarding location of place of occurrence. According to the prosecution case hue and cry was raised after the incident of assault. As such, it is very much improbable for the PW 6 to see any incident of assault by appellant to PW 11 because after hearing hue and cry he came to the place of occurrence. Therefore, his evidence of assault by appellant to PW 11 cannot be regarded as direct evidence but it may be treated as ‘hearsay’. PW 7 has also not stated anything in favour of prosecution although he was examined and also cross-examined by prosecution with permission of Court. PW 9 and PW 10 stated nothing remarkable in favour of the prosecution about alleged occurrence. PW 12 and PW 14 are investigating Police Officers and PW 13 is the doctor who medically treated PW 11. Said three witnesses are not eye-witnesses of alleged occurrence. According to PW 13, the PW 11 might have sustained his head injury due to assault by lathi or also if he falls from certain height. In our opinion, in the light of discussion, made above, in the interest of finding out the truth the evidence of PW 13, PW 11 and PW 8 should be considered simultaneously. PW 13 has stated, “After examination I found that the patient was unconscious and one injury that was stitched 6 to 7 cm on left fronto parietal region and there was also underlying depressed bone fracture in the mid line”. During cross-examination he has stated, “I do not know who stitched the injury of the patient brought to me”. He has not stated about any other external injury of PW 11. During cross-examination he has stated, “I do not know who stitched the injury of the patient brought to me”. He has not stated about any other external injury of PW 11. No evidence has been adduced by prosecution as to where the wound of PW 11 was stitched before producing him for treatment by PW 13. According to PW 11, on 30.05.2010 at about 8:30 p.m. he went to the main entrance of their house on call by Somnath Mallick (PW 2) and when PW 11 was gossiping there with PW 2 then appellant came and assaulted on the head of PW 11 by a bamboo stick and other two accused persons encircled him there so that PW 11 could not flee away from that place. His said statement is almost chorus with the written FIR (exhibit- 1) and voice of PW 8 against question No. 9. PW 11 has stated that due to such assault he suffered bleeding injury and seeing the blood he became senseless and he regained sense at Vibekananda Nursing Home, Durgapur. During cross-examination he has stated that when he was injured on his head he became senseless. He was confined in hospital for about one month but he did not state to the attending doctor as to how he got injury and he also did not narrate the incident to any member of his family about cause of his injury. He also did not narrate the incident before Police Officer. The first Investigating Police Officer (PW 12) has claimed that he examined PW 11 on 15.02.2011. In scanning the evidence it appears that PW 11 received single external injury on head which was stitched first elsewhere and then he was medically treated by PW 13 but PW 11 did not narrate, before anybody before recording his evidence in Court, the incident of his receiving his bleeding injury becoming senseless due to assault by the appellant with bamboo stick when other two accused persons encircled PW 11 so that PW 11 could not flee away and during said occurrence PW 2 remained present there but he played no role. The PW 12 has claimed that PW 2 stated before him during investigation that the appellant repeatedly assaulted PW 11 by a bamboo lathi on his head and after assault PW 11 fell down on the road with bleeding injury when PW 2 raised hue and cry hearing which, the inmates of the house of PW 11 and neighbours rushed to that place. Since prosecution has claimed that PW 2 turned hostile during trial, if we believe that during investigation PW 2 made such statement as is claimed by PW 12 then also it does not reflect the truth as only a single external injury was found on the head of PW 11 which is not result of repeated blow of lathi on the head. According to PW 11, we do not find presence of any other witness excepting PW 2 at the time of assault on PW 11 and his becoming senseless at the instance of accused persons. It is not the case of prosecution that PW 11 narrated the incident before any other person before lodging FIR by PW 8 at Police Station. Interestingly, relating to the alleged occurrence PW 11 and PW 8 have deposed almost in the same tune. In FIR it has been alleged that accused Fatik Roy and Nitya Gopal Roy remained standing far 25-30 cubits away at the time of assault on PW 11 by appellant. PW 8 did not make such statement in her deposition. No witness has stated that either appellant or his brother or his father entered into the house premises of PW 8 through their entrance gate. According to PW 8 their premises is surrounded by pucca boundary wall and there is only one entrance gate of their residence from the road (vide answers to questions No. 37 and 38). She has also stated that the distance between the main entrance and the building wall is about 8-9 cubits (answer to question No. 9). If the above circumstances be taken together then by no stretch of imagination it can be said that the father and brother of appellant encircled PW 11 in such a way so that PW 11 could not flee away as stated by PW 8 and PW 11. Therefore, we cannot believe either PW 8 or PW 11 as truthful witness beyond reasonable doubt. Therefore, we cannot believe either PW 8 or PW 11 as truthful witness beyond reasonable doubt. Rather, it can be safely believed that PW 11 being the injured victim has also not given a true picture about the cause of injury but he has tried to depose in order to corroborate his mother (PW 8) who has improved her earlier version made in FIR even by contradiction. That apart, the PW 8 herself had shown to police the ground which was blood stained (vide answer to question No. 46 of PW 8) and that place has been drawn by PW 12 in exhibit- 3 which place is obviously enclosed by the boundary wall of house premises of PW 8. These contradictions are very serious and invite reasonable doubt on the whole prosecution case. Significantly, the PW 11 received head injury in the night. PW 8 has claimed that she witnessed the occurrence through window of a room of first floor of their house. She has not described how she witnessed the alleged incident and identified miscreants in that night from such a distant place. If for the sake of arguments, we believe that PW 11 and PW 2 were standing on the entrance gate of the house at a distance of 8-9 cubits from the wall of the building and the appellant assaulted PW 11 with bamboo stick causing his head injury when the father and brother of appellant were standing 25-30 cubits away from appellant in that night as reflected in FIR and deposition of PW 8 then a very reasonable doubt appears as to whether it was possible for PW 8 to see the occurrence and to identify the accused persons through a window of first floor for their house. Significantly, it may be mentioned that from the evidence of PW 8 it can be said that she has below normal vision on her eyes (vide answers to questions No. 32, 33 and 34). As such, from the totality of evidence of PWs we find that the prosecution has failed to examine any disinterested person in support of the allegation of assault on PW 11 by appellant. We also find that PW 1, PW 3, PW 8 and PW 11 are highly interested witnesses of the prosecution and none of them is intrinsically reliable or their depositions reveal narration of events which are inherently probable. We also find that PW 1, PW 3, PW 8 and PW 11 are highly interested witnesses of the prosecution and none of them is intrinsically reliable or their depositions reveal narration of events which are inherently probable. Thus we find and hold that prosecution has failed to prove the case against the appellant beyond reasonable doubt. Consequently, the appellant deserves the benefit of doubt and his acquittal setting aside the whole judgment of conviction and sentence is proper and lawful. Before concluding our discussion we like to point out that the injury sustained by PW 11 is serious one and if such injury was caused by any human being he should not be left unpunished. From legal point of view such punishment can be awarded to that person(s) only who shall be found guilty beyond shadow of doubt. It is not for the Court to speculate as to who committed such offence. For want of proof beyond reasonable doubt the appellant should not be punished and accordingly this appeal succeeds. The impugned judgment of conviction and sentence as a whole is hereby set aside. The appellant be released from correctional home if his detention is not wanting in any other case. A copy of this judgment alongwith L.C.R. be sent to the learned Trial Court forthwith for information and issuing release order of the appellant. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree.