JUDGMENT : Joymalya Bagchi, J. 1. Report is filed on behalf of the State wherefrom it appears that the counter case registered at the behest of the appellants had ended in acquittal. Report is kept with the record. 2. The present appeal is directed against the judgement and order dated 23.6.1987 passed by the learned Additional Sessions Judge, Midnapore in Sessions Trial Case No. VII/October/1985 convicting the appellants for commission of offences punishable under Sections 304 Part II/148, 324/149, 379/149 and 149 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for two years for the offences punishable under Section 148, 324/149 and 379/149 of the Indian Penal Code respectively and to suffer rigorous imprisonment for four years for the commission of offence punishable under Section 304 Part II/149 of the Indian Penal Code. All the sentences to run concurrently. 3. Prosecution case, as alleged, against the appellants is to the effect that on 31.7.1983 at about 1.30 P.M. Prafulla Mahato received an information that fishes were being caught under the leadership of Manoranjan Mahato and others from his pond at Uttara Mouza. The miscreants were armed with bows, arrows, tangi, ballam etc. Prafulla along with his son Jogesh went and resisted the miscreants from catching fish. At that time, the appellants tried to dip Prafulla in the water. Jogesh managed to rescue Prafulla and as they were proceeding towards their house, the appellants chased them. Out of fear, they entered into the house of Kanai Hembram. The miscreants thereafter encircled the house of Kanai. Manoranjan dragged Prafulla from the house and at the time Joyram Mahato assaulted him with arrow on the left side of his chest. Thereafter Bijan and Manoranjan assaulted Prafulla with tangi on the legs. Bankim assaulted Prafulla on both of his legs when Jogesh tried to save his father. Manoranjan assaulted Jogesh on his head with tangi which was handed over by Bankim. Thereafter, Bijan assaulted Jogesh on the head and on different parts of the body with the help of tangi. Both the injured persons were taken towards the pond. Subsequently, Prafulla succumbed to his injuries and died. First Information Report was registered by Nirupama Mahata, P.W.1, the wife of the deceased and upon conclusion of the investigation, charge sheet was filed under Sections 148, 379/149, 302/149, 324/149, 307/149 of the Indian Penal Code against the appellants. Both the injured persons were taken towards the pond. Subsequently, Prafulla succumbed to his injuries and died. First Information Report was registered by Nirupama Mahata, P.W.1, the wife of the deceased and upon conclusion of the investigation, charge sheet was filed under Sections 148, 379/149, 302/149, 324/149, 307/149 of the Indian Penal Code against the appellants. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, Midnapore for trial and disposal. Charges were framed under Sections 148, 379/149, 302/149, 324/149, 307/149 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried. 4. The defence of the appellants was that Prafulla and his son Jogesh and Chandrakanta had murdered Gunadhar Roy in their pond at Uttara Mouza on 31.7.1983 at noon and the accused Sitaram Das had lodged a criminal case being Jhargram P.S. Case No.21 dated 31.7.1983 was registered against them. The present case is a counter case to the aforesaid case and the appellants have been falsely implicated in the instant case. 5. In course of trial, prosecution examined as many as 16 witnesses. The appellants, however, did not examine any witness of their own to probabilise their defence. In conclusion of trial, the trial court by judgment and order dated 23.6.1987 convicted and sentenced the appellants, as Ms. Das, learned Amicus Curiae submitted that the evidence on record of the prosecution witnesses suffers from various embellishments and contradictions. She further submitted that the present case is a counter case to Jhargram P.S. Case No.21 dated 31.7.1983 where Gunadhar Roy was murdered by Prafulla (the deceased) and his sons. It is also submitted that the evidence of P.W.2 and 10 are highly artificial and ought not to be relied upon. She prayed for acquittal of the appellants. 6. On the other hand, learned Advocate appearing for the State submitted that the counter case registered at the behest of the appellants being Jhargram P.S. Case No.21 dated 31.7.1983 has ended in acquittal. He further submitted that the evidence of P.W.2 and 10 categorically implicate the appellants in assaulting the victim and his son Jogesh, P.W.10 herein. P.W.10 is an injured eye witness and his evidence ought not to be lightly brushed aside. He prayed for dismissal of the appeal. 7. He further submitted that the evidence of P.W.2 and 10 categorically implicate the appellants in assaulting the victim and his son Jogesh, P.W.10 herein. P.W.10 is an injured eye witness and his evidence ought not to be lightly brushed aside. He prayed for dismissal of the appeal. 7. P.W.1, Nirupama Mahata, is the daughter of the deceased and first informant in the instant case. She deposed that her father had a pond at Uttara Mouza which he had purchased 30 years ago. On 31.7.1983, they got information that the fish was being caught from the pond under the leadership of Manoranjan Mahato. She along with her father, her elder brother Jogesh, P.W.10 and other relations went to the pond. On reaching the pond, they found the appellants catching fish with the help of net. The appellants no.1, 2 and 7 along with Gunadhar tried to drown her father. Jogesh rescued him from the hands of the appellants. At that time, Gunadhar was injured in the water. Jogesh took his father away and the appellants chased them. Jogesh and her father took shelter into the house of Kanai Hembram and the appellants came there with Lathi, Tangi, bows and arrows. They encircled the house of Kanai. Thereafter, the appellant no.1 dragged his father from inside the room. The appellant no.3 assaulted his father with arrows on the left side of the chest. Her father prayed for mercy. Thereafter, the appellant no.2 assaulted her father with Tangi on his legs. The appellant no.7 assaulted her father with Tangi on his legs. Jogesh tried to save her father. Thereafter, the appellant no.1 assaulted Jogesh with tangi on his head. Appellant no.7 also assaulted Jogesh on his head. The appellant no.1 started dragging his brother and father into the pond. Thereafter the appellant nos.4 and 5 pulled her father and brother to the side of the pond and her father was killed there. They were threatened and returned home. In the meantime, a jeep came and on hearing the sound of the jeep, the appellants fled away. She deposed that she went to the Police Station in that jeep. The jeep belonged to Rajbari of Jhargram. The complaint was written by Manoranjan Mahato as per her dictation. It was read over and explained to her and she put her signature on it. She deposed that she went to the Police Station in that jeep. The jeep belonged to Rajbari of Jhargram. The complaint was written by Manoranjan Mahato as per her dictation. It was read over and explained to her and she put her signature on it. She returned from the Police Station and found her father was in an unconscious state and Jogesh was in a semi-conscious state. She showed the place of occurrence to the I.O. Gunadhar Roy who was injured died in the hospital. Her father and brother Jogesh were sent to Jhargram Hospital. Her father died in the Hospital. She signed the inquest report. She identified the dead body of her father to the Medical Officer. The appellant no.1 is her uncle. 8. In cross-examination she admitted that her father and brother Jogesh were accused in the murder of Gunadhar Roy. She deposed in that case as D.W.1. In the said case, she deposed that she has not seen the incident. When she reached the pond, she found her father in an unconscious condition and Gunadhar in an injured condition. 9. P.W. 2, Kanai Hembram is an eyewitness of the case. He deposed that onthe date of incident, Prafulla and his son came to his house shouting ‘amake bachao’ (save me). 25/30 people surrounded the house with bows, arrows, tangi etc. He identified appellant nos.1,2,3,4,6,7,9 and 11. Appellant no.1 entered the house and dragged Prafulla. Appellant no.3 assaulted Prafulla with an arrow on the left chest. Prafulla prayed for mercy. Thereafter, appellant no.2 assaulted Prafulla with tangi on his right leg. Appellant no.7 assaulted Prafulla with tangi on both his legs. When appellant no.7 was assaulting Prafulla, Jogesh (P.W.10) came out. Appellant no.1 assaulted Jogesh with tangi on his head. Appellant no.7 also assaulted Jogesh with tangi on his head. Then the appellants dragged Prafulla and Jogesh out on the street. Out of fear he could not say anything. 10. In cross-examination, he has stated that he has one room surrounded by mud wall on all sides. His house is north-south long. There are two rooms in his house. There is a single door to enter his house which is on the western side. The incident took place in the northern side of the house. He did not show the P.O. to police as rain intervened. He stated to the police that after the incident there was rain. There are two rooms in his house. There is a single door to enter his house which is on the western side. The incident took place in the northern side of the house. He did not show the P.O. to police as rain intervened. He stated to the police that after the incident there was rain. 11. P.W.3, Buran Hembram is the uncle of P.W.2. He resides in the house of P.W.2. He resides in the western side of the house whereas P.W.2 resides in the eastern side. On the date of occurrence in the afternoon Dipak @ Jogesh and Prafulla entered the house of P.W.2. Thereafter, some persons chased them and encircled the house. They are appellant nos.1,2,3,4,5,6,7,8,9,10 & 11. Thereafter, appellant no.1 dragged Prafulla from inside the house. Appellant no.3 assaulted Prafulla with an arrow on the left chest. Appellant no.2 assaulted Prafulla on the right thigh. Prafulla fell down. Thereafter, appellant no.7 assaulted on the leg of Prafulla. P.W.10 came out of the room to save his father. Appellant no.1 assaulted Dipak @ Jogesh on the head. Appellant nos. 2 and 7 thereafter, assaulted him with tangi. Appellant no.1 ordered the injured persons to be dragged to the pond. He was a paralytic patient and could not see anything. 12. In cross-examination, he stated that his building is to the west of Kanai’s room (P.W.2). At the relevant time he was not in a position to move. There was a courtyard in his house. The courtyard is surrounded by rooms and mud walls. He could not move at that time. 13. P.W.4, Bani Prova Mahato is another son of Prafulla. He deposed that on 14th Sravan, 4 years ago i.e. on the day of occurrence they received information that miscreants were stealing fish from their Uttara pond. He along with his brother, elder sister Nirupama went to the pond. The appellants were catching fish from the pond with the help of net. His father resisted. Thereupon appellant nos. 1,2,7 and Gunadhar dragged his father inside the water. His brother Dipak @ Jogesh rescued his father. At that time Gunadhar was injured by his own weapon. His father and brother took shelter in the house of P.W.2. The appellant no.1 dragged his father from P.W.2’s house. Appellant no.3 assaulted him with arrow. Appellant no.2 assaulted his father with a tangi on the right thigh. His father fell down. His brother Dipak @ Jogesh rescued his father. At that time Gunadhar was injured by his own weapon. His father and brother took shelter in the house of P.W.2. The appellant no.1 dragged his father from P.W.2’s house. Appellant no.3 assaulted him with arrow. Appellant no.2 assaulted his father with a tangi on the right thigh. His father fell down. Thereafter, appellant no.7 assaulted his father with tangi on his legs. Dipak @ Jogesh tried to help his father whereupon he was also assaulted. Appellant no.1 directed the injured persons to be dragged near the pond and they were accordingly dragged near the pond. On hearing the sound of a jeep they ran away. His elder sister went to the thana by jeep. 14. In cross-examination, he admitted that when he reached the pond he found Gunadhar and Prafulla lying in injured condition. His mother was also with him. At about 8:00 P.M. police examined him and thereafter, police took Prafulla and Dipak @ Jogesh to hospital. Dragging his father into the water did not cause any harm to him. 15. P.W.5, Putibala Mahato is the wife of the victim. She has corroborated the evidence of P.W.1 and 4. 16. P.W.6, Dr. B.B. Hembram was a medical officer attached to Jhargram hospital. He examined Jogesh Mahato (P.W.10) and found the following injuries: (1) One lacerated injury 2 ½ x ¾ x 1/3 on the valt of the scalp. (2) One lacerated injury on the scalp at right upper part of occipital region 1” x 1/5” x 1/8”. (3) Another lacerated injury on the right lower aspect of another region 1” x ¼” x ½”. (4) Three linear swellings with parallel bruises on the right scapula region with massive eccepymosis around the swelling. (5) One swelling mid parallel bruises of 3” in length right arm outer aspect. 17. He opined that all the injuries were caused by hard and blunt substance like lathi. He stated that the patient told him that he was assaulted on 31st July, 1988 at about 1:30 P.M. He deposed that injury nos.2 & 3 may be caused if assaulted by the back side of a tangi. Other injuries may be caused by lathi. 18. P.W.7, Dr. Ashim Kr. Bardhan was another medical officer attached to Jhargram hospital who conducted post mortem over the dead body of Prafulla Mahato. He found the following injuries: 1. Other injuries may be caused by lathi. 18. P.W.7, Dr. Ashim Kr. Bardhan was another medical officer attached to Jhargram hospital who conducted post mortem over the dead body of Prafulla Mahato. He found the following injuries: 1. One incised wound 1” x ½” X ¼” in front of left tibia anterior aspect. 2. One incised wound ¾” x 1/3” X 1/3” on anterior aspect of left tibia half inch the injury no.1. 3. One incised wound 1” x ½” x ¼” below injury No.2. 4. One linear incised wound 1” x ½’ x 1/3” in front of tibia below injury no.3. 5. One diffused swelling round about left ankle. On resection fracture of left tibia and fibula. 6. One diffused swelling in lower half of right leg. On resection both bone of tibia of right leg seen. 7. One incised wound 2 ½” x ½” in middle third of right leg. 8. One arrow found to be impacted at the junction of left deltoid and pectoralis muscile. On further resection of arrow injury it is found to be on the backward and posterior. The size being 1” x ½ “ x 3 Capsule of the shoulder joint is found to be torn. 9. One diffused swelling on the middle of forearm is broken. 10. The linear bruises 2” x ½” on posterior lateral aspect of left forearm. 11. One diffused swelling 5” x 3” on anterior aspect of lower part of left chest. On dissection 6th to 9th rib fractures were detected. The dissection wound showed extra vasation of blood in and around the injuries. 19. He opined that death was due to shock and hemorrhage as a result of above injuries which were antemortem and homicidal in nature. He deposed that he recovered arrows in between left deltoid and pectoralis muscle. Injury nos.1,2,3,4 & 7 may be caused by tangi. Other injuries may be caused by lathi. 20. P.W.8, Bhudu Ch. Kar was a constable attached to Jhargram police station who deposed that he could not serve notice upon prosecution witness, Chandrakanta Hansda. 21. P.W.9, Thakurdas Mahato is a witness of inquest. He has proved his signature at the inquest report (Exhibit-3/1). 22. P.W.10, Jogesh Chandra Mahato is an injured eye-witness. He deposed that they have a pond numbered 198 at Uttara Mouza. The pond is owned and possessed by his father and recorded in his name. 21. P.W.9, Thakurdas Mahato is a witness of inquest. He has proved his signature at the inquest report (Exhibit-3/1). 22. P.W.10, Jogesh Chandra Mahato is an injured eye-witness. He deposed that they have a pond numbered 198 at Uttara Mouza. The pond is owned and possessed by his father and recorded in his name. On 31st July, 1983 on hearing the news of catching fish from the pond he and his father came to Uttara pond and found that the appellants were catching fish from the said pond. His father resisted whereupon appellant nos.1,2 & 3 and one Gunadhar dipped his father into the water. Gunadhar was injured in the pond. He rescued his father and the appellants chased them. They entered the house of Kanai Hembram. The appellants encircled the house of Kanai. Appellant no.1 dragged his father out of the room and appellant no.7 assaulted him with arrow. Appellant no.2 assaulted his father with tangi on his right leg. His father fell down. Thereafter, appellant no.7 assaulted his father on both the legs. He tried to rescue his father whereupon he was assaulted by tangi on his head. Appellant no.7 assaulted him with the back of an axe. He lost his senses. He regained his senses in the house. He was examined by the Investigating Officer and was sent to hospital. He was in the hospital for a month. 23. P.W.11 was the Sub-Inspector of police attached to Jhargram PoliceStation. On 31st July, 1983 at about 4:30 P.M. he received the written complaint from one Nirupama Mahato and drew up the formal FIR (Exhibit-4). He took up investigation of the case. He visited the village at around 7:00 P.M. De-facto complainant showed him the P.O. He came to the house of Prafulla Mahato and found him and P.W.10 in injured condition. He examined P.W.10 and sent the injured persons for treatment to Jhargram hospital. He prepared a sketch map but the same is missing. He could not find the weapons of assault. He did not find any blood stain marks either near the pond or outside the house of Kanai as the same were washed away by rain. Prafulla died on the way to hospital. He directed U.D. case to be started and also directed S.I. S.K. Sen, to hold inquest over the dead body of Prafulla. He did not find any blood stain marks either near the pond or outside the house of Kanai as the same were washed away by rain. Prafulla died on the way to hospital. He directed U.D. case to be started and also directed S.I. S.K. Sen, to hold inquest over the dead body of Prafulla. Upon his transfer he handed over the charge of investigation to S.I. S.K. De. He proved the seizure list in respect of seizure of arrow, blood stain, wearing apparels (Exhibit-5). He identified the arrow (Mat. Exhibit-1). 24. P.W.12, Bhogin Chandra Soren was posted as A.S.I. of police at Jhargram police station. He took the injured persons to Jhargram hospital. 25. P.W.13, Surendra Nath Sen was posted as S.I of police to Jhargram Police station. He held inquest over the dead body of Prafulla at Jhargram hospital. 26. P.W.14 is the second Investigating officer of the case who submitted charge-sheet. 27. P.W.15 is an officer of J.L.R.O., Jhargram. 28. P.W.16 is the J.L.R.O., Jhargram who deposed that plot no. 198 was standing in the name of the deceased Prafulla Kumar Mahato. He proved the report of the Circle Inspector (Exhibit-6). 29. From the aforesaid evidence on record it is clear that deceased Prafulla owned and possessed a pond in plot no.198 within Uttara Mouza. On receiving information fishes were being stolen from the pond he along with his son P.W.10 went to the pond and found that the appellants were catching fish. He resisted them whereupon there was an altercation between him and his son on one hand and the appellants on the other hand. It appears that one Gunadhar had died at the spot. Thereafter, the deceased and his son fled from the pond and took shelter in the house of P.W.2. Appellants surrounded the house and appellant no.1 dragged Prafulla from the house, appellant no.3 assaulted Prafulla with an arrow on the left side of his chest. Then appellant no.2 assaulted Prafulla with a tangi on the right thigh. Prafulla fell down and appellant no.7 again assaulted him with tangi on both his legs. At that time his son (P.W.10) came out of the house and tried to save him. P.W.10 was also assaulted with tangi by appellant nos. 1 and 7 and he fell down on the ground. They were dragged to the pond by the miscreants. Prafulla fell down and appellant no.7 again assaulted him with tangi on both his legs. At that time his son (P.W.10) came out of the house and tried to save him. P.W.10 was also assaulted with tangi by appellant nos. 1 and 7 and he fell down on the ground. They were dragged to the pond by the miscreants. It appears that the incident was promptly reported by P.W.1 to the police station and in the evening Prafulla and his son, Dipak @ Jogesh were sent to hospital for treatment. Unfortunately, Prafulla died on the way to hospital. It has been argued that there is no explanation as to the cause of death of Gunadhar at the pond and therefore, the prosecution case ought not to be believed. 30. Over the issue of death of Gunadhar, a criminal case being Jhargram P.S. Case No. 21 of 1983 dated 31st July, 1983 was registered against Prafulla, Dipak @ Jogesh (P.W.10) and others. I have been informed that the said case has resulted in an acquittal. On the other hand, Prafulla and Dipak @ Jogesh (P.W.10) appear to have been assaulted in front of the residence of P.W.2 and not at the place where Gunadhar had died. Hence, the act of the appellants in assaulting Prafulla and P.W.10 in front of the residence of P.W.2 can by no stretch of imagination be said to be an act of private defence to the death of Gunadhar. 31. Coming to the evidence of the purported eye-witnesses namely, P.W.1,2,3,4,5 & 10, I am of the opinion that apart from P.W.2 and P.W.10, none of them can be treated as eye-witnesses. P.W.1, in cross-examination admitted that she had deposed in the counter case over the murder of Gunadhar that she had not seen the incident. It appears from an analysis of evidence of P.W.1, P.W.4 and P.W.5 that they had come to the place of occurrence after the incident and found Prafulla and Dipak @ Jogesh lying flat near the pond. Hence, the said witnesses cannot be said to be as eye-witnesses of the incident. P.W.3 was living in the adjoining house of P.W.2. He, however, admitted in cross-examination that he was inside the house which was surrounded by mud walls and he did not move from the said place as he was suffering from paralysis. Hence, the said witnesses cannot be said to be as eye-witnesses of the incident. P.W.3 was living in the adjoining house of P.W.2. He, however, admitted in cross-examination that he was inside the house which was surrounded by mud walls and he did not move from the said place as he was suffering from paralysis. Accordingly, it is difficult to rely on his version as an eye-witness of the incident. However, the evidence of P.W.2 and P.W.10 does not appear to suffer from any defect or embellishment. P.W.2 was the owner of the house where P.W.10 and his father had sought refuge and had seen the incident of assault which occurred in front of his own house. His evidence is wholly corroborated by the injured witness, P.W.10. They have specifically mentioned the roles of appellant nos.1,2, 3 & 7 in the assault of the victim and P.W.10 himself. Such assault is corroborated by the medical witnesses in the instant case. 32. Hence, I am of the opinion that the prosecution has been able to prove his case of assault on the deceased and P.W.10 beyond reasonable doubt against the appellant nos. 1,2,3 & 10. 33. However, with regard to the charge of theft of fish, I do not find that any stolen fish was recovered from the possession of the appellants. Hence, the charge of theft cannot be said to have been proved beyond reasonable doubt against any of the appellants. 34. With regard to the other appellants although there is some evidence that they were present at the place of occurrence but there is complete absence of evidence with regard to the role played by them in the assault of deceased and P.W.10. It appears that one Gunadhar had died in the commotion which occurred in the pond. Prafulla, the deceased, and his sons including P.W.10 were accused of the murder of Gunadhar but had been acquitted. 35. In the backdrop of such circumstances, mere presence of the appellants at the place of occurrence without anything more cannot give rise to the inference that they shared the common object with the appellant nos.1,2,3 & 7 to assault the deceased and P.W.10 and thereby causing the death of the victim. Hence, I am of the opinion that other appellants namely, appellant nos.4,5,6,8,9,10 & 11 are entitled to the benefit of doubt. Hence, I am of the opinion that other appellants namely, appellant nos.4,5,6,8,9,10 & 11 are entitled to the benefit of doubt. Accordingly, conviction and sentence of appellant nos.1,2,3 & 7 are upheld for commission of offence punishable under Sections 304 (Part-II)/149, Sections 324/149 and Section 148 IPC and they are, however, acquitted of the charge under Sections 379/149 IPC. 36. With regard to the other appellants namely, appellant nos.4,5,6,8,9,10 & 11 they are acquitted of all the charges levelled against them. 37. The appeal is allowed to the aforesaid extent. 38. Period of detention suffered by the appellant nos.1,2,3 & 7 during investigation, enquiry and trial shall be set off against substantive sentence under Section 428 of the Code of Criminal Procedure. 39. The bail bonds of the appellant nos.1, 2, 3 & 7 are cancelled and they are directed to surrender before the trial court forthwith as aforesaid. If they fail to do, the trial court shall be at liberty to execute the sentence in accordance with law. 40. The appellant nos.4, 5, 6, 8, 9, 10 & 11 shall be discharged from their bail bonds after six months from date in terms of Section 437A of the Code of Criminal Procedure. 41. The lower court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action. 42. I record my appreciation for the able assistance rendered by Ms. Sreeparna Das, learned advocate, as Amicus Curiae in disposing of the appeal. 43. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.