Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 819 (GAU)

Rajen Das & Anr. v. State of Assam

2015-06-26

M.R.PATHAK, P.K.SAIKIA

body2015
P.K. Saikia, J. 1. This appeal is directed against the judgment dated 16.11.2011 passed by the learned Addl. Sessions Judge, (FTC) No. 1, Kamrup, Guwahati in Sessions Case No. 67(K) 72006 convicting appellants Nagen Das and Rajen Das ('accused persons') of offence under section 302/34, IPC and sentencing them to suffer imprisonment for life and also to pay a fine of Rs. 10,000 each in default S.I, for another 1 year for the offence aforesaid. 2. Being aggrieved and dissatisfied with the aforesaid judgment, accused persons have preferred this appeal citing several infirmities in the judgment under challenge. 3. We have heard Dr. G. Lal, learned counsel for the appellants and also heard Ms. S. Jahan, learned Addl. P.P., for the State. 4. The case projected in the FIR as well as in the subsequent trial, in brief, are that on the intervening night of 2.8.2000 and 4.8.2000 at about 3 a.m., a quarrel took place between the accused Uttam Das and Digen Das with one Sukleswar Das (since deceased) ('the victim') in which accused persons as well as victim sustained injuries on their persons. However, the victim succumbed to injuries some time later. 5. An FIR to that effect on being lodged by one Sri Chandra Kanta Doley with the O/C, Palashbari Police Station ('PS') on 4.8.2000, the O/C of the aforesaid PS registered a case on such FIR vide Palashbari PS Case No. 97/2000 under section 302/34, IPC and ordered one Sri Debeswar Das, S.I. of police to investigate the case. 6. During the course of investigation, Sri Das, the I/O, who was entrusted with the investigation of the case, visited the place of occurrence, conducted inquest on the dead body, sent the same to hospital for post mortem examination, examined the witnesses, well acquainted with the facts and circumstances of the case, did other needful and on conclusion of investigation, the I/O submitted charge sheet under section 302, IPC against as many as 5 accused persons, namely, (1) Sri Uttam Das, (2) Sri Nagen Das, (3) Sri Surya Das, (4) Sri Rajen Das and (5) Sri Digen Das. 7. The learned Magistrate before whom charge sheet was so laid, committed the case to the Court of Session since the offence under section 302, IPC is exclusively triable by the Court of Session. 7. The learned Magistrate before whom charge sheet was so laid, committed the case to the Court of Session since the offence under section 302, IPC is exclusively triable by the Court of Session. The learned Sessions Judge on the receipt of case on commitment transferred the same to the file of Addl. Sessions Judge, FTC No. 1, Kamrup, Guwahati for disposal in accordance with law. 8. The learned Addl. Sessions Judge, on receipt of the case on transfer and on hearing the learned counsel for the parties, framed charge under section 302/34, IPC against accused persons and charge, so framed, on being read over and explained to Sri Surya Das, Sri Nagen Das and Sri Rajen Das, they pleaded not guilty and claimed to be tried. It may be stated that the case against accused Uttam Das and Digen Das was split since they were declared absconder. 9. Towards the closure of trial, accused Uttam Das too fled from justice for which he was also declared absconder. During trial, prosecution has examined as many as 9 witnesses including the I/O as well as M/O. Being so required, accused Rajen Das adduced the evidence of 2 witnesses while other accused persons did not examine any witness in support their claim of innocence. 10. On conclusion of trail and on hearing the learned counsel for the parties, learned court below was pleased to convict accused persons, (appellants herein) of offence under section 302/34, IPC and sentenced them to punishment as aforesaid. It is that judgment which has been assailed in the present appeal, 11. Dr. G. Lal, learned counsel for the appellants submits that judgment under challenge cannot be sustained since it was not rendered in accordance with the prescription of law, nor was it rendered on the basis of evidence on record. In that connection, it has been stated that the FIR was lodged soon after the alleged incident by one Sri Chandra Kanta Doley, who was examined as PWI who claims to be one of the eye witnesses to the incident in question. 12. Despite said Sri Chandra Kanta Doley (PWI) being a witness to the incident in question, he, as being informant, named only 2 persons in the FIR as being the persons who allegedly assaulted and killed the victim on the night in question. 12. Despite said Sri Chandra Kanta Doley (PWI) being a witness to the incident in question, he, as being informant, named only 2 persons in the FIR as being the persons who allegedly assaulted and killed the victim on the night in question. But said Sri Chandra Kanta Doley, when tendered evidence before the court during trial, implicated as many as 6 persons including the present appellants. 13. The absence of the names of the appellants herein in the FIR which was reportedly lodged soon after the alleged incident strongly suggests that the appellants herein are implicated falsely in order to satisfy the grudge which the family members of the victim harbored against them, more so, when the informant is found to be the person who claimed to have witnessed the incident in question right from the moment one. 14. It has also been contended that in his evidence, PWI claims that on the fateful night, he saw as many as 6 accused persons assaulting the victim in his own house, he saw 2 of them, namely, Uttam Das and Nagen Das taking the victim to the nearby river where he was thrown only to be retrieved there from little later. As per the evidence tendered by PWI, all accused persons ultimately took the victim to the village Namghar where he was laid on the ground in a seriously injured condition. 15. Those aspects seem to be the fundamental facets of the prosecution case. But despite those facts forming the very fulcrum of the prosecution case, such facts could not make their way to the FIR which was lodged on 4.8.2000 in the morning. Non-inclusion of those very vital facts in the FIR, in the facts and circumstances of the present case, again goes to show that PWI drastically improve the prosecution story when he tendered evidence during trial. 16. The learned counsel for the appellants further submits that in his cross-examination, PWI admitted that he did not witness the occurrence under consideration. Such admission, on the part of PWI, firmly shows that his evidence cannot be relied on for any purpose whatsoever as his very presence at the PO becomes extremely doubtful. 17. According to learned counsel for the appellants, another important witness is PW6, Sri Tapan Das, who happens to be the son of the victim. Such admission, on the part of PWI, firmly shows that his evidence cannot be relied on for any purpose whatsoever as his very presence at the PO becomes extremely doubtful. 17. According to learned counsel for the appellants, another important witness is PW6, Sri Tapan Das, who happens to be the son of the victim. Since on the date of incident, PW6 was found to be a boy of about 5 years of age, his evidence needs to be tested on the touchtone of various judicial decisions laying down the norms for appreciation of child witnesses. According to learned counsel for the appellants, when one examines the evidence of PW6 on the touch-tone of the judicial decisions, it would appear clear that the evidence of PW6 too cannot be accepted without a large grain of salt. 18. In that connection, it has been stated that according to PW6, the incident occurred at 12 a.m., on the night in question. In the very beginning, accused Uttam and Digen came to their house and got involved in a quarrel with his father. In that quarrel, father of PW6 had badly beaten accused persons for which they left their house soon thereafter. However, at about 3 am, as many as 6 accused persons came to their house once again being armed with various weapons and assaulted his father. 19. However, all these allegations did not find their place in the FIR although such facts seem to have serious bearing on the outcome of the case in hand. The failure of the informant to incorporate such facts in the FIR of the case in hand once again throws the prosecution case to a maze of serious doubt— argues learned counsel for the appellants. 20. It is also found evident from the testimony of PW6 that when his father was so assaulted by accused persons, he (PW6) was in the lap of his father (victim). However, soon after the incident, he was taken away by one Gopi Das. But said Gopi who came to the PO as the incident was going on was not examined although Gopi Das could have thrown sufficient light on the matter under consideration since he appears to be the one of the eye witnesses to the incident aforementioned. Non-examination of such a witness without assigning any reason is fatal to the prosecution case -- contends Mr. G. Lal. 21. Non-examination of such a witness without assigning any reason is fatal to the prosecution case -- contends Mr. G. Lal. 21. In his evidence, the I/O confirms that some very vital fundamental information which PW6 chose to divulge before the court during trail was not disclosed to the I/O while PW6 was examined by him during investigation in accordance with provision of section 161, Cr.PC meaning thereby that testimony of PW6 suffer from the vice which is commonly called as contradiction, which requires this court to view the testimony of PW6 with suspicion. 22. That apart, the story, narrated by PW6 before the court, did not find any support from other witnesses, more particularly, PW1. Since the evidence of PW6 suffers from contradictions, since his evidence is also not supported by other witnesses, and since PW6 is a child witness who was a boy aged about 5 years on the date of incident his evidence cannot be acted upon in ascertaining the guilt of accused persons herein. 23. The learned counsel for the appellant further submits that vital witnesses, such as, PW1 is found saying that Roma Das first reported him about the incident who woke him up from sleep for which he rushed to the PO and saw as many as 6 persons quarrelling with the victim. Similarly, one Gopi Das came to the PO when incident was going on and took away PW6 from his house presumably to save him from the assault of the assailants of his father. 24. But those very vital persons were not examined, and that too, without assigning any reason whatsoever. Non-examination of such persons as witnesses and that too, without assigning any reason raises a serious doubt about the authenticity of the prosecution case. On this count alone, according to learned counsel for the appellants, the judgment in the present case needs to be quashed and set aside. 25. Learned counsel for the appellant again submits that there are serious discrepancies regarding the place of occurrence since some of the witnesses claim that the incident occurred in the house of victim, yet, others are found saying that they found the victim not in his own house but found lying in a profoundly injured condition in the village Namghar. 25. Learned counsel for the appellant again submits that there are serious discrepancies regarding the place of occurrence since some of the witnesses claim that the incident occurred in the house of victim, yet, others are found saying that they found the victim not in his own house but found lying in a profoundly injured condition in the village Namghar. How and why the victim came to Namghar remains far from being explained requiring his court to view the prosecution case with suspicion on this count also. 26. In view of aforesaid contradictory evidence, rendered on the point of PO, it becomes an unavoidable duty on the part of the prosecution to produce and prove the sketch map to explain the ambiguity that occurred on the place of occurrence. Unfortunately, the prosecution has failed to produce and prove the sketch map of the place of occurrence. Non-production and non-proving of such an enormously important document raises more and more doubt about the place where the alleged incident took place and consequently, it also raises serious doubt about the authenticity of the entire prosecution case - argues learned counsel for the appellants. 27. Prosecution case comes under sharp criticism for other reason as well. In that context, it has been alleged that though some articles were allegedly seized during the course of investigation, yet, those articles having enormous implications on the outcome of the prosecution case were not produced before the court during trial which again raise more and more suspicion about the prosecution case. On all those counts, learned counsel for the appellants submits this court to acquit accused persons of the offences aforesaid on setting aside the judgment under challenge. 28. On the other hand, Ms. S. Jahan, learned Addl. P.P., submits that Doctor's evidence reveals that the victim sustained several cut injuries of extremely serious nature which occasioned his instantaneous death. Such evidence of Doctor when read in the light of evidence of PW1 and PW6, it would appear clear that author of the crime in question are 6 persons who were named by PW1 and PW6 in their evidence. 29. Though there are some infirmities which are highlighted by the learned counsel for the appellants, in view of materials on record, it needs to be concluded that such infirmities are too insignificant to cause any harm to the prosecution case. 29. Though there are some infirmities which are highlighted by the learned counsel for the appellants, in view of materials on record, it needs to be concluded that such infirmities are too insignificant to cause any harm to the prosecution case. Being so, according to her, present appeal lacks merit and same is liable to be dismissed. 30. We have heard the rival submissions having regard to the judgment under challenge and evidence on record. 31. Before we proceed further, we find it necessary to have a look at the evidence of Doctor who conducted the post mortem examination on the body of the deceased at Gauhati Medical College Hospital ('GMCH') on 5.8.2000. He is Dr. Kanak Chandra Das and was examined as PW5. His evidence is as follows : General appearance - Brown. Complexion, average built, male dead-body, found dressed with one long pant, both eyes were closed and mouth partially open, anus-penis were healthy, Rigor-mortise was present all over the body, the body was cold on touch Injuries: 1. Cut injury present on the scalp over that vault of the skull of size 5 cm x 2 cm. Scalp deep. 2. Cut injury present on the scalp over the left partial bone size 4 cm x 2 cm x scalp deep. 3. Cut injury present in the scalp over the right partial bone size 3 cm x 2 cm. Scalp deep. 4. Cut injury present on the scalp over the left temporal bone size 3 cm x 2 cm x scalp deep. 5. Cut injury present on the scalp over the right temporal bone size 4 cm x 2 cm x scalp deep. 6. Cut injury present on the scalp over the occipital bone size 4 cm x 1 cm x scalp deep. 7. Cut injury present on the scalp over forehead--left side size 3 cm x 1 cm x scalp deep. 8. Graze abrasion present over the right shoulder size 15 cm x 6 cm. 9. Graze abrasion present over the back of the chest size 10 cm x 6 cm. 10. Cut injury present on the scalp over the forehead middle part-- size 2 cm x 1 cm x scalp deep. 11. Cut injury present on the right thigh, middle part in lateral surface size 2 cm x 1 cm x muscle deep. 12. 9. Graze abrasion present over the back of the chest size 10 cm x 6 cm. 10. Cut injury present on the scalp over the forehead middle part-- size 2 cm x 1 cm x scalp deep. 11. Cut injury present on the right thigh, middle part in lateral surface size 2 cm x 1 cm x muscle deep. 12. Cut injury present on the right thigh, lower part in lateral side size 3 cm x 2 cm x muscle deep. 13. Cut injury present on the left little toe size 1 cm x 1 cm x bone deep. 14. Cut injury present on the lateral side of the right foot-- size 5 cm x 2 cm. Muscle deep. 15. Cut injury present on middle of the right foot-size 4 cm x 2 cm x muscle deep. 16. Cut injury present on the left palm- size 3 cm x 2 cm. Muscle deep. 17. Cut injury present on right thumb size 2 cm x 1 cm x muscle deep. 18. Cut injury present on right forearm middle part-size 2 cm x 1 cm deep. Other organs were healthy. Opinion: Death was due to shock and haemorrhage as a result of cut injury described which were ante--mortem, and caused by sharp cutting weapon and homicidal in nature. Approximate time since death 24 and 36 hours. 32. The evidence of Doctor coupled with the averments made in the post mortem report (Ext. 3) as well as inquest report (Ext. 2) clearly reveal that the victim died on or about 3.8.2000 and he died a homicidal death on sustaining as many as 18 (eighteen) cut injuries of various degrees and intensities on different parts of his body. 33. So situated, let us consider the evidence of prime prosecution witnesses who are none other than PW1 and PW6. In his evidence, PW6 states that one day at about 12 at night while he was sleeping with his father (Sukleswar) and his younger sister, accused Uttam and Digen knocked on the doors of their house and called their father to come out of his house. Responding to such calls, when his father came out of his house, his father got involved in a quarrel with those 2 persons and thereafter, he chased them away from his house. 34. Responding to such calls, when his father came out of his house, his father got involved in a quarrel with those 2 persons and thereafter, he chased them away from his house. 34. On the same night, at about 3 am accused (i) Uttam Das, (ii) Nagen Das, (iii) Surya Das, (iv) Rajen Das, (v) Digen Das and (vi) Jogen Das again came to their house and started to assault his father. Accused Surya Das was armed with dao and he (Surya Das) inflicted several dao blowers on his father. While his father was so assaulted by those accused persons, PW6 was in the lap of his father. Hearing all these, one Gopi Das came to their house, retrieved him and thereafter, took him to his house. 35. In his cross-examination, the suggestion that he did not tell the I/O during investigation (a) that all those accused persons had come to their house on the night aforesaid, (b) that Surya Das came to their house armed with a dao, (c) that all accused persons had assaulted his father, (d) that Surya Das planted several dao blows on his father and (e) that one Gopi Das had come to their house on the night and took him away from such place were denied by PW6. 36. PW1, Sri Chandra Kanta Doley, deposes that on 3.8.2000 at about 3 a.m. one Roma Das, who is a co-villager, came to his house, woke him up from sleep and told him that a violent incident was going on in the house of the victim. He immediately went to such place and found accused persons, Uttam, Nagen Surya, Rajen, Digen and Jogen quarreling with the victim. Though he tried to intervene, accused persons did not listen to him and continued to assault the victim. 37. Thereafter, Uttam and Nagen took Sukleswar (victim) out of his house and threw him into the river. But the victim was immediately retrieved from the river, took him to the village Namghar and left him there. The aforesaid victim died in the Namghar on 4.8.2000 at about 6.30 a.m. PW1, thereafter, lodged an FIR with concerned Police Station which he proved as Ext 1. 38. In his cross-examination, he admitted that there was no electricity at the place of occurrence and that the night in question was a dark night. The aforesaid victim died in the Namghar on 4.8.2000 at about 6.30 a.m. PW1, thereafter, lodged an FIR with concerned Police Station which he proved as Ext 1. 38. In his cross-examination, he admitted that there was no electricity at the place of occurrence and that the night in question was a dark night. In his cross-examination, he also admitted that when he arrived at the place of occurrence, he saw Bhuban Chandra Das, Haricharan das, Roma Das, etc., at the place aforesaid. In his cross-examination, he again admitted that he could not say exactly what roles were played by each of the aforesaid accused persons. 39. PW2, Sri Bhupen Das, PW3, Sri Binandi Das, PW4, Sri Suren Das and PW 7, Sri Basanta Kr. Das deposed that they came to know about the incident in question only on the morning of 4.8.2000 and thereafter, they came to the village Namghar and found that the victim was lying dead in the veranda of the Namghar aforesaid. These witnesses further stated that they did not know as to how the deceased met his death on 4.8.2000. 40. PW 7 is the I/O who confirmed that during the course of investigation PW6 did not tell the I/O that Surya Das has assaulted his father, that he assaulted his father on various parts of his body and that he did not tell that all accused persons came to the house of the victim on the night aforementioned. 41. It is in those backdrops, let us consider how far such evidence on record makes out the allegation leveled against accused persons. We have already found that star campaigners are PW1 and PW6. It may be noticed here that PW6 is a child witness, his age being 5 years on the date of incident. Being so, as required under the law, the evidence of PW6 needs to be tested on the touchtone of the law, laid down in regard to appreciation of child witness. 42. It is settled law that evidence of child witness needs to be considered with great care and caution since a child witness is susceptible to perceive something as real although such thing never exists in fact. This is because of the fact that they tend to live in make believe world. In that connection, we may peruse profitably the decision in the case of Nivrutti Pandurang Kokate & Ors. This is because of the fact that they tend to live in make believe world. In that connection, we may peruse profitably the decision in the case of Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, MANU/SC/7172/2008: AIR 2008 SC 1460 . The relevant part is reproduced below : "The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make--believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and molded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." 43. Similar view was rendered in the case of Rameshwar S/o Kalyan Singh v. The State of Rajasthan, MANU/SC/0036/1951; AIR 1952 SC 54 , in Mangoo and Anr. v. State of Madhya Pradesh, MANU/SC/0182/1995; AIR 1995 SC 959 and Panchhi & Ors. v. State of U.P., MANU/SC/0530/1998. 44. When such infirmities in the child witness is considered in the light of evidence rendered by PWs more particularly, PW1 and PW6, it would appear clear that no implicit reliance can be placed on the testimony of child witness aforementioned. 45. However, before putting the evidence of PW6 on scrutiny, we find it necessary to scrutinize the evidence of PW1. On analysis of the evidence of PW1, it is found that it is he who having lodged the FIR on 4.8.2000 set the law in motion. 45. However, before putting the evidence of PW6 on scrutiny, we find it necessary to scrutinize the evidence of PW1. On analysis of the evidence of PW1, it is found that it is he who having lodged the FIR on 4.8.2000 set the law in motion. We have also found that he claims to be the eye witness to the incident in question, since, in his evidence, he states that on the fateful night, he arrived at the place of occurrence on being informed about such incident by one Roma Das. 46. His evidence reveals that once he came to the place of occurrence around 3 a.m., he found as many as 6 accused persons aforementioned in the house of the victim. He also saw them quarreling with victim. Soon thereafter, accused Uttam and Nagen took the victim to the nearby river where they threw him to the river water only to be retrieved from the river water little later. On retrieving the victim from the river aforesaid, they again took the victim to the village Namghar nearby and left him there in a seriously injured condition. 47. However, the story which he narrated before the court during trial did not draw support from the story as stated in the FIR which was admittedly lodged by none other than PW1. In that context, it may be stated that in the FIR, he named only 2 persons, as being the assailants of the victim, they being accused Digen and Uttam. However, during trial, he contends that 4 other persons too assaulted the victim on the night in question. 48. The naming only 2 persons as being assailants of the victim in the FIR although he chose to implicate as many as 4 other persons as being the assailants of the victim on the night in question during trial raises a serious doubt about the authenticity of the claim of PW1 that on the night aforesaid as many as 6 persons aforesaid had brutally assaulted the victim which ultimately occasioned his death next day in the morning. 49. We have found that the evidence of PW1 needs to be suspected for other reason as well. This is because of the reason that the story which he narrated in the FIR differs drastically from the story which he narrated before the court during trial. 49. We have found that the evidence of PW1 needs to be suspected for other reason as well. This is because of the reason that the story which he narrated in the FIR differs drastically from the story which he narrated before the court during trial. This is because of the fact that in his evidence, he claims that on the fateful night at about 3 am, as many as 6 accused persons came to the house of victim, and assaulted him brutally. 50. Even thereafter, accused Uttam and Nagen took the victim to the nearby river, threw him into the river water only to be retrieved little later there-from and then they took the victim to nearby Namghar and left him there in an injured condition. We have found that all those allegations are very fundamental to the prosecution case and, therefore, such facts ought to have been incorporated in the FIR which was lodged by none other than PW1. 51. Unfortunately, all those facts of enormous importance did not find their way in the FIR which was proved as Ext. 1. Withholding of such vital information in the FIR which was lodged by PW1, now, requires this court to conclude that PW1 had made all efforts to improve the prosecution case as the same progressed from stage to stage. Such revelations not only make the testimony of PW1 unreliable but they also affect the veracity of entire prosecution case. 52. Coming to the evidence of PW6, we have found that the evidence of PW6 is equally faulty. According to PW6, on the fateful night at about 12 midnight, accused Uttam and Digen came to their house and started kicking on the doors of their house. They also dared his father to come out from his house to face them. His father responded to such call, came out of his house and chased them up to some distance. However, those persons along with 4 others again came to their house at about 3 am, and got involved in a quarrel with his father. 53. He also states that accused Surjya then planted very many blows on his father inflicting huge wounds on him. According to PW6, he witnessed such incident by being in the lap of his father. As the incident was going on, one Gopi Das came there and took him to his house for his safety. 53. He also states that accused Surjya then planted very many blows on his father inflicting huge wounds on him. According to PW6, he witnessed such incident by being in the lap of his father. As the incident was going on, one Gopi Das came there and took him to his house for his safety. Such evidence, rendered by PW6 during trial once again did not find any place in the FIR. The absence of such a story in the FIR, in the facts and circumstances of the present case, again requires this court to doubt the authenticity of the evidence of PW6 as well. 54. It is found that accused persons suggested the PW6 that he did not tell the I/O during investigation (a) that accused Surjya planted dao blows on his father, (b) that he did not tell the names of all the assailants to the I/O and (c) that accused persons came to their house at 12 midnight and again at 3 a.m. Such suggestions were denied by PW6. The prosecution was therefore, duty bound to call the I/O to ascertain the veracity of aforesaid allegations. 55. However, the I/O who conducted investigation of the case in hand was not examined. Since I/O was not examined and since accused persons, in turn, did not get the opportunity to confirm such allegations that some very vital statements which PW6 chose to divulge before the court during trial had not been disclosed to the I/O during investigation, in our opinion, such infirmity in the prosecution case comes down heavily on it requiring this court to view the entire evidence of PW6 with huge suspicion more so, when PW6 is found to be child witness and more so, when his evidence suffers from some other count as well. 56. There is evidence on record to show that night in question was a dark night and that there was no electricity at the PO during the time under consideration. How those witnesses could recognize the assailants on the night in question, despite night in question being a dark night, and, in spite of there being no electricity at the PO, had not been fullv explained by the prosecution which, in turn, throws the entire prosecution case to a labyrinth of more and more suspicion. 57. How those witnesses could recognize the assailants on the night in question, despite night in question being a dark night, and, in spite of there being no electricity at the PO, had not been fullv explained by the prosecution which, in turn, throws the entire prosecution case to a labyrinth of more and more suspicion. 57. We have found that Gopi Das was one, who according to PW6, took him from the place of occurrence when the incident was still going on. On the other hand, PW1 deposes that he came to know about the incident in question from one Roma Das and thereafter, he came to the PO and found some persons, such as, Bhuban Ch. Das and Haricharan Das at the PO. Such persons, namely, Gopi Das, Bhuban Ch. Das and Haricharan Das were not examined, and that too, without assigning any reason whatsoever. 58. Non-examination of those witnesses, in the facts and circumstance? of the case in hand, requires this court to draw a presumption a; contemplated in the Illustration to section 114(g) of the Evidence Act suggesting strongly that had those witnesses been examined, they wound not have supported the case of prosecution. In our considered opinion, this is one more reason to suspect the prosecution case. 59. PW1 alleged that he came to know about the incident in question from one Roma Das and thereafter, he came to the PO and found some persons, such as, Bhuban Ch. Das, Haricharan Das and Roma Das at the PO. Some other persons were there at the PO at that point of time. However, Roma Das who was examined as PW8 refused to support the claim made by PW1 before the court during trial. Such a revelation, once again, makes the testimony of PW1 even more unreliable. 60. We have found from the testimony of PW2, PW3, PW4 and PW 7 tha: when they came to the village Namghar, they found the body of the victim in the veranda of Namghar. On the other hand, PW1 and P\V6 depose that the deceased was assaulted brutally by accused persons a: his own house. There was no convincing evidence on record to show a; to how the body of the victim came to the village Namghar despite the victim being assaulted by accused persons at his own house. 61. On the other hand, PW1 and P\V6 depose that the deceased was assaulted brutally by accused persons a: his own house. There was no convincing evidence on record to show a; to how the body of the victim came to the village Namghar despite the victim being assaulted by accused persons at his own house. 61. One may notice here that the aforesaid inconsistency regarding PO could have been explained by the prosecution with the help of sketch map. However, prosecution did not produce on record sketch map o: the PO. Non-production of the sketch map before the court during trial makes an already shaky prosecution case totally unreliable, more so when the evidence on record does not give any accurate idea as to where the incident in question took place on the night of 3.8.2000. 62. It is found that some of the articles were seized during the course of investigation. Production of those seized articles before the court during trial could have helped the court in ascertaining the allegations leveled against accused persons. However, those articles were not produced during trial. Non-production of those articles during trial again makes the prosecution case more and more unreliable. 63. In view of above, we are of the opinion that evidence of PW1 and PW6 cannot at all be relied on since their evidence is found to be riddled with several infirmities of extremely serious nature, requiring this court to view the entire prosecution case with suspicion. 64. That being the position, learned court below was not right that prosecution has proved the charge against accused persons beyond all reasonable doubt and as such, same is liable to be quashed and set aside. 65. In the result, the judgment under challenge stands quashed and set aside. Accused persons are ordered to be released forthwith if they are not required in connection with any other case. 66. Return the LCR forthwith.