JUDGMENT : SANKAR ACHARYYA, J. This appeal has been directed against the judgment and order of conviction and sentence dated 25.05.2012 and 28.05.2012 respectively passed by learned Additional Sessions Judge, 4th Court, Suri, Birbhum in Sessions Trial No. 3 (6) of 2011 arising out of Sessions Case No. 43 of 2011 convicting the appellants under Sections 302/34 and 325/34 of the Indian Penal Code. Both the appellants are confined in correctional home. On 20.04.2010 a written information was lodged at Rajnagar Police Station by the informant Samir Mirdhya which was registered as Rajnagar Police Station FIR No. 18/2010 dated 20.04.2010 under Sections 325/302/34 of the Indian Penal Code. Police Officers of Rajnagar Police Station investigated the case and submitted charge-sheet against the five accused persons whose names appear in the FIR. After commitment of the case charges under Sections 325/302/34 of the Indian Penal Code were framed against all the five accused persons and the case was tried in the Court of learned Additional Sessions Judge, 4th Court, Suri, Birbhum. In the impugned judgment two appellants of this appeal were convicted and sentenced of the charges under Sections 325/302/34 of the Indian Penal Code and the other three accused persons namely Madhusudan Ghosh, Bipodtaron Mondal and Malay Majhi were acquitted of the charges. Prosecution case was under trial before the learned Additional Sessions Judge, 4th Court, Suri, Birbhum as per FIR. The case made out in FIR is that on 19.04.2010 at about 5:30 p.m. the informant Samir Mirdhya and his elder brother Dilip Mirdhya were returning home after completion of their work. They noticed that in the house of appellant no. 1 Lakshmi Kanta Mirdhya of Village – Sundarkhele, the accused persons along with some others entered with weapons. Witnessing it the informant and his elder brother Dilip were proceeding hurriedly through embankment of a pond named Boropukur of Ghosh family of their village. Said pond is situated beside the house of appellant no. 1. While they were proceeding through the embankment the appellant no. 1 assaulted on the head of Dilip Mirdhya forcefully with a piece of stem of Sonajhuri tree, Dilip fell down. Other accused persons rushed to the spot and they also assaulted Dilip. Said pond is situated beside the house of appellant no. 1. While they were proceeding through the embankment the appellant no. 1 assaulted on the head of Dilip Mirdhya forcefully with a piece of stem of Sonajhuri tree, Dilip fell down. Other accused persons rushed to the spot and they also assaulted Dilip. When the informant Samir Mirdhya raised protest he was also assaulted on his head and on his raising voice Adesh Mirdhya and Shyamal Mirdhya who were present near the place of occurrence came to the spot and miscreants went away. At that time the miscreants threatened that they would cause murder to one-two persons also. Those miscreants are involved in a political party. The informant and some other villagers brought Dilip to Rajnagar Hospital first and thereafter, Dilip was referred to Suri Sadar Hospital and after sometime of admission at Suri Hospital, Dilip succumbed to his injuries. During trial, prosecution examined as many as 15 witnesses as 16 PWs, namely informant Samir Mirdhya (PW 1), Purnima Mirdhya who is widow of the victim (PW 2), Kartick Mirdhya who is cousin of PW 1 and of the victim (PW 3), Naren Murmu (PW 4), Dr. Nihar Ranjan Sardar (PW 5), Madhai Mirdhya who is maternal uncle of PW 1 and of the victim (PW 6), Durjodhan Mirdhya who is cousin brother of PW 1 and of the victim (PW 7), Subhash Roy who is scribe of the written information (PW 8), Dr. Debapriya Mukherjee (PW 9). A.S.I. Satyanarayan Mondal (PW10), Constable – Sunil Kumar Pal (PW 11), Dr. Sukhamoy Saha (PW 12), Astik Mukherjee (PW 13), S.I. – Dwijaraj Sahana (PW 14), Constable – Sunil Kumar Pal (PW 15) who was examined as PW 11 also and Arun Kumar Das (PW 16). Some documents were produced as exhibits on behalf of the prosecution during trial. Two pieces of stem of Sonajhuri tree were also produced and marked material exhibits. We like to note that in course of hearing this appeal, some ambiguity appeared before us relating to Exhibit- 2 document which was prepared and signed by PW 5. In order to remove such ambiguity, we reexamined the PW 5 and recorded his evidence. Both the appellants were examined in the trial Court under Section 313 of the Code of Criminal Procedure. They did not adduce any evidence. In order to remove such ambiguity, we reexamined the PW 5 and recorded his evidence. Both the appellants were examined in the trial Court under Section 313 of the Code of Criminal Procedure. They did not adduce any evidence. Defence case of the accused persons as disclosed during trial is denial of the alleged occurrence and involvement of the accused persons in causing death of Dilip Mirdhya. Further defence of the accused persons is that said Dilip Mirdhya was addicted to liquor and he might have sustained injury on head due to fall on hard and blunt substance or being knocked against any hard substance but accused persons were falsely implicated because they belonged to the political party opposite to the political party to which PW 1 and the deceased belonged. The accused persons claimed themselves as innocent. At the time of hearing this appeal learned counsel for the appellants has taken us to the FIR and has advanced arguments that according to FIR, near the place of occurrence Adesh Mirdhya and Shyamal Mirdhya were present and at the relevant time they came to the place of occurrence but the prosecution withheld those two vital witnesses from witness box for which learned trial Judge ought to have drawn adverse presumption against the prosecution. He has also taken us to the evidence of PW 7 and PW 14 and submitted that PW 7 stated before the investigating police officer during investigation that by the hard pieces of wood Dilip Mirdhya (deceased) assaulted Lakshmi Kanta Mirdhya (appellant no. 1) on his head but during trial PW 7 denied his earlier statement recorded under Section 161 of the Code of Criminal Procedure (in short Cr.P.C.). He has drawn our attention to the evidence of PW 14 who arrested the appellant no. 1 from Suri Sadar Hospital (page 2) but PW 14 did not ascertain as to why appellant no. 1 was admitted in hospital (page-3). According to learned counsel for the appellants the prosecution case has not been proved beyond reasonable doubt but the appellants have been erroneously convicted by the learned Trial Court. Mr. Banerjee, learned Additional Public Prosecutor on behalf of the State has argued that prosecution successfully proved its case beyond shadow of doubt and learned Additional Sessions Judge rightly convicted and sentenced to the appellants for which this appeal is liable to be dismissed. Mr. Banerjee, learned Additional Public Prosecutor on behalf of the State has argued that prosecution successfully proved its case beyond shadow of doubt and learned Additional Sessions Judge rightly convicted and sentenced to the appellants for which this appeal is liable to be dismissed. Moot point before us for determination is whether the impugned judgment should be sustained or set aside. At the very outset we find that the charge under Section 325/34 of the Indian Penal Code was framed against the accused persons alleging that they voluntarily caused grievous hurt to de-facto complainant Samir Mirdhya (PW 1). In the last paragraph of page- 28 of the impugned judgment learned Additional Sessions Judge observed, “The allegation of causing voluntarily grievous hurt to the de facto complainant that is Samir Mirdhya is not proved against the accused persons for want of proper evidence”. Despite such observation in the body of the impugned judgment learned Judge in the Trial Court found the appellants guilty of the offence under Section 325/34 of the Indian Penal Code which cannot stand together. Under such circumstances we are of the opinion that the impugned judgment relating to conviction and sentence of appellants under Section 325/34 of the Indian Penal Code is perverse and not sustainable. It is obvious in the written information (FIR) that the PW 1 made complaint against the three acquitted accused persons also as miscreants but this PW 1 stated in his cross-examination during trial that he has no complaint against them. In that written information (FIR) excepting the names of Adesh Mirdhya and Shyamal Mirdhya no other name was mentioned as witness relating to the alleged occurrence. Surprisingly, said two persons were not examined during trial. As such, we cannot ignore the arguments of the learned counsel for the appellants that the prosecution withheld those two vital witnesses who might have thrown light on the determining question of the case. We are satisfied to draw adverse inference under Section 114 (Illustration g) against the prosecution as argued on behalf of the appellants. The PW 1 who is author of the written information (FIR) stated that Lakshmi Kanta Mirdhya (appellant no. 1) came out from his house and hit with a piece of Sonarjhei wood on the head of Dilip Mirdhya and thereafter Amar Ghosh started assaulting said Dilip Mirdhya with a piece of Sonajhuri wood. The PW 1 who is author of the written information (FIR) stated that Lakshmi Kanta Mirdhya (appellant no. 1) came out from his house and hit with a piece of Sonarjhei wood on the head of Dilip Mirdhya and thereafter Amar Ghosh started assaulting said Dilip Mirdhya with a piece of Sonajhuri wood. If the said statements of the PW 1 is treated as true state of affairs then undoubtedly more than one mark of assault on the person of Dilip Mirdhya would be found but from the evidence of PW 5 who examined said Dilip Mirdhya at Rajnagar Block Primary Health Centre it appears that only one lacerated injury on the head of Dilip Mirdhya was found. Similarly, PW 9 found a single wound on the head of Dilip Mirdhya at the time of conducting post-mortem examination over the dead body. PW 10 held inquest over the dead body of Dilip Mirdhya. He prepared the exhibit- 6 report of inquest. It does not appear from the evidence of PW 10 or exhibit- 6 that there was more than one mark of injury on the dead body of Dilip Mirdhya. Admittedly, the PW 1 is brother of Dilip Mirdhya and he belongs to a political party which, in the state politics, is rival to the political party of the appellants. Considering the above aspects we are not satisfied to treat the PW 1 as a trustworthy witness. PW 2 is widow of Dilip Mirdhya. Her name does not appear in FIR as witness of any incident relating to the alleged occurrence. PW 1 stated during his cross-examination that he along with his cousin brother Adesh Mirdhya took Dilip Mirdhya to Rajnagar Hospital and to Suri Sadar Hospital. Both the PW 1 and FIR do not speak about witnessing by PW 2 any incident of assault on Dilip Mirdhya but PW 2 claims herself as eye-witness of the incident of assault on her husband by both the appellants. We like to reiterate that there was not more than a single injury on the persons of Dilip Mirdhya. But this PW 2 claimed that two appellants assaulted by a piece of Sonajhuri wood. As such, her claim of witnessing the incident of assault does not appear to us believable. It is needless to say that PW 1 and PW 2 are close relations of Dilip Mirdhya and they are not independent witnesses. But this PW 2 claimed that two appellants assaulted by a piece of Sonajhuri wood. As such, her claim of witnessing the incident of assault does not appear to us believable. It is needless to say that PW 1 and PW 2 are close relations of Dilip Mirdhya and they are not independent witnesses. PW 3 is a cousin of the deceased Dilip Mirdhya and PW 1. He stated that hearing hue and cry he rushed to the side of the pond of Ghosh Family of their village and on reaching there he found both the appellants laid down Dilip Mirdhya after assaulting him. Thereafter, Adesh Mirdhya and Madhai Mirdhya (PW 6) came to the spot and on seeing them the accused persons fled away. This PW 3 also claimed that both the appellants assaulted Dilip Mirdhya by a piece of Sonajhuri wood. In the light of our discussions made above relating to evidence of PW 1 and PW 2 we are not satisfied about his witnessing any incident of assault by both the appellants to Dilip Mirdhya with Sonajhuri wood causing single injury of the deceased. That apart, we like to mention that according to PW 1 his elder brother Dilip Mirdhya was assaulted by appellant no. 1 first and thereafter, by appellant no. 2 Amar Ghosh and then PW 1 tried to resist them but appellant no. 2 Amar Ghosh or appellant no. 1 Lakshmi Kanta Mirdhya hit the PW 1 on his head and thereafter, PW 1 started shouting. PW 3 claimed that he was in his home and after hearing hue and cry he rushed to the pond of Ghosh family and on his arrival he witnessed the incident of assault on Dilip Mirdhya. According to our scanning of said evidence, if PW 1 be believed then it cannot be believed that PW 3 witnessed any incident of assault on Dilip Mirdhya. PW 4 does not claim himself as witness of the alleged occurrence of assault by the appellants on Dilip Mirdhya or on PW 1with any Sonajhuri wood. This PW 4 was declared hostile on prayer made on behalf of the state. He was cross-examined by learned Public Prosecutor in Charge on behalf of the State but nothing has come out from his mouth to prove any incident of assault on Dilip Mirdhya by appellants. This PW 4 was declared hostile on prayer made on behalf of the state. He was cross-examined by learned Public Prosecutor in Charge on behalf of the State but nothing has come out from his mouth to prove any incident of assault on Dilip Mirdhya by appellants. PW 5 examined Dilip Mirdhya at Rajnagar Block Primary Health Centre on 19.04.2010 after giving primary treatment to the patient he referred the patient to Suri Sadar Hospital. This PW 5 prepared his report which was marked exhibit- 2 during trial on perusal of exhibit- 2 in isolation it may be said that this PW 5 examined Dilip Mirdhya and PW 1 Samir Mirdhya both but he did not examine Samir Mirdhya in fact. During his cross-examination on behalf of the accused persons he stated that he could not get any opportunity to give treatment to Samir Mirdhya as the patient remained absent at the material time. However, in order to remove any ambiguity or doubt we called this PW 5 and on his examination we are satisfied that this PW 5 did not examine the PW 1 Samir Mirdhya in connection with the alleged incident. PW 6 is maternal uncle of Samir Mirdhya (PW 1) and Dilip Mirdhya (Deceased). He has claimed that suddenly they heard a hue and cry and on reaching the said place they found that both the appellants by giving a blow of piece of wood on the head of Dilip Mirdhya killed him. This PW 6 has claimed that he had seen the said incident of killing Dilip Mirdhya at the instance of both the appellants. PW 6 further stated that both the accused persons assaulted Samir Mirdhya (PW 1). On the same analogy as discussed in course of discussion on the deposition of PW 3 we are not satisfied to believe this PW 6 as trustworthy eye-witness of the alleged incident of assault on Dilip Mirdhya. PW 7 is a cousin of Dilip Mirdhya (deceased) and Samir Mirdhya (PW 1). This PW 7 stated in his deposition that at the relevant time he heard hue and cry of Samir Mirdhya (PW 1) who was shouting that his brother was being killed and after hearing such hue and cry PW 7 rushed to the spot and found that appellant No. 1 Lakshmi Kanta Mirdhya and appellant no. This PW 7 stated in his deposition that at the relevant time he heard hue and cry of Samir Mirdhya (PW 1) who was shouting that his brother was being killed and after hearing such hue and cry PW 7 rushed to the spot and found that appellant No. 1 Lakshmi Kanta Mirdhya and appellant no. 2 Amar Ghosh were giving blow on the head of Dilip Mirdhya by a piece of Sonajhuri wood and thereafter, becoming injured by the said assault Dilip Mirdhya fell down and the accused persons fled away from the spot. We like to mention that in the written information PW 1 stated that Lakshmi Kanta Mirdhya (appellant no. 1) hit forcefully on the head of elder brother of PW 1 suddenly with the hard wood of Sonajhuri tree and his elder brother then and there fell down on the ground. In the same tune PW 1 deposed. As such, according to them it may be safely said that there was no scope for the PW 7 or any other PW to witness any incident of giving blow on the head of Dilip Mirdhya by the appellants on reaching the spot after hearing hue and cry of PW 1. Therefore, this PW 7 being cousin of PW 1 and the deceased also does not establish himself before us as a trustworthy witness. PW 8 is the scribe of the written complaint. He is not witness of the alleged incident. PW 9 held post-mortem examination over the dead body of Dilip Mirdhya. He proved the post-mortem report as exhibit- 5. He did not express his opinion as to whether the death of Dilip Mirdhya was homicidal death or not and such opinion was kept reserved for viscera analysis report. Therefore, from the evidence of PW 9 it cannot be firmly observed that the death of Dilip Mirdhya was a homicidal death. We like to mention that PW 5 stated in his cross-examination that the injury of Dilip Mirdhya might have occurred due to fall upon a blunt substance causing the head injury. PW 1 admitted during his cross-examination that Dilip Mirdhya used to consume liquor occasionally. It was in substance claimed by the appellants during trial that Dilip Mirdhya might have sustained injury on head due to fall on hard and blunt substance or being knocked against any hard substance causing his injury on head. PW 1 admitted during his cross-examination that Dilip Mirdhya used to consume liquor occasionally. It was in substance claimed by the appellants during trial that Dilip Mirdhya might have sustained injury on head due to fall on hard and blunt substance or being knocked against any hard substance causing his injury on head. It was suggested to PW 1 from the side of appellants that on the relevant day Dilip Mirdhya consumed liquor which suggestion was denied by PW 1. It does not appear from the evidence of PW 9 or exhibit- 5 as to whether any liquor was found in the abdomen on dissection or not as the viscera of the deceased was collected and preserved for forensic examination. No report of forensic examination over the viscera was brought on record as a piece of evidence during trial. It goes against the prosecution. PW 10 held inquest over the dead body of Dilip Mirdhya at Suri Sadar Hospital and sent the dead body for post-mortem examination through PW 11 who is PW 15 also. PW 12 examined Dilip Mirdhya at Suri Sadar Hospital on 19.04.2010 at 7:55 p.m. he also stated about single lacerated wound on the scalp of Dilip Mirdhya and about no other mark of assault or injury on the persons of Dilip Mirdhya. He was shown the seized pieces of Sonajhuri wood and he opined that the injury of Dilip Mirdhya might have caused by either of the two. During his cross-examination he stated that such type of injury may occur if any person himself hits the said wood or if he falls on the said wood and lacerated injury as stated by him also may occur if any person falls on hard and blunt substance. This PW 12 proved the treatment sheets as exhibit- 9. Neither this PW 12 nor the exhibit- 9 speaks about name of any assailant of the patient Dilip Mirdhya. PW 13 recorded the FIR at Rajnagar Police Station receiving the complaint of PW 1 on 20.04.2010 and drew up formal FIR (Exhibit- 10). During his cross-examination PW 13 stated that at the time of lodging of the written complaint the informant did not state anything about delay in lodging the FIR. PW 13 recorded the FIR at Rajnagar Police Station receiving the complaint of PW 1 on 20.04.2010 and drew up formal FIR (Exhibit- 10). During his cross-examination PW 13 stated that at the time of lodging of the written complaint the informant did not state anything about delay in lodging the FIR. According to the FIR, alleged occurrence took place on 19.04.2010 at about 5:30 p.m. at village Sundarkhele at a distance of 10 k.m. from P.S. Rajnagar and the complaint was lodged at P.S. by PW 1 on 20.04.2010 at 8:15 a.m. There is no explanation of delay mentioned in the FIR. The manner of consideration of the delay in the impugned judgment does not appear to us as reasonable and convincing. PW 14 investigated the case as endorsed by PW 13. During his cross-examination he stated that Durjadhan Mirdhya (PW 7) stated before PW 14 that by the said hard pieces of woods Dilip Mirdhya (deceased) assaulted Lakshmi Kanta Mirdhya (appellant no. 1) on his head. Interpretation of learned Additional Sessions Judge in the impugned judgment relating to said evidence of PW 14 does not appear to us proper. It was brought to our notice by learned counsel for the appellants that the PW 14 arrested the appellant no. 1 Lakshmi Kanta Mirdhya at Suri Sadar Hospital on 20.04.2010 as said appellant was ill. During cross-examination PW 14 stated that he did not ascertain as to why and when Lakshmi Kanta Mirdhya admitted in Suri Sadar Hospital. In our view, failure to give explanation of hospitalisation of the appellant no. 1 at the relevant time on the part of prosecution seriously goes against the prosecution case. We like to mention here that according to PW 5 and PW 12 Dilip Mirdhya remained unconscious. From their evidence it appears that said Dilip Mirdhya did not regain consciousness after the alleged incident. As such, it may be said that according to PW 7 while Dilip Mirdhya was in consciousness he assaulted with hard piece of wood on the head of appellant no. 1. PW 14 could not conclude the investigation due to his transfer from Rajnagar P.S. and last part of investigation was done by PW 16. This PW 16 forwarded the appellant no. 1 Lakshmi Kanta Mirdhya to Court after his release from hospital. 1. PW 14 could not conclude the investigation due to his transfer from Rajnagar P.S. and last part of investigation was done by PW 16. This PW 16 forwarded the appellant no. 1 Lakshmi Kanta Mirdhya to Court after his release from hospital. This PW 16 collected injury report of the deceased Dilip Mirdhya but he did not ascertain as to why and since when accused Lakshmi Kanta Mirdhya was admitted in Suri Sadar Hospital. In our view, this is a glaring example of perfunctory investigation. In our view, learned Trial Judge failed to consider the materials on record with correct approach and thus we cannot concur with the findings of the learned trial Judge in this appeal. We find and hold that in trial the prosecution hopelessly failed to prove its case beyond reasonable doubt against the appellants. We are satisfied to find and hold that the appellants are not guilty of the charges levelled against them and both of them deserve acquittal. As a result, this appeal succeeds. The impugned judgment with orders of conviction and sentence is hereby set aside. Both the appellants are found not guilty of the charges under Sections 325/302/34 of the Indian Penal Code and they are acquitted of said charges. They are set at liberty and be released from custody forthwith if their detention in custody is not wanted in any other case. A copy of this judgment alongwith the lower Court records be sent to the Trial Court. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly observing requisite formalities. I agree.