JUDGMENT : Shivakant Prasad, J. The instant appeal is directed against the judgment and order of acquittal dated 21.04.1995 passed by Mr. Arup Das, Learned Additional Sessions Judge, 1st Court, Burdwan in Sessions Case No. 94 of 1992 arising out of Khandaghosh P.S. Case No.80/90 dated 28.8.90 whereby the accused persons/respondents were acquitted from the charges under section 302/34 of the Indian Penal Code. 2. Prosecution case in brief is that the accused persons/respondents herein caught hold of the deceased Ajit Kumar Dawn alias Kachi on 27.08.1990 at 11 PM in front of the house of Ratan Dan and dragged the victim to the house of Hari Sadhan Royand tied him in a khuti (pole) in the night and all the accused persons, namely, Hari Sadhan Roy, Kinkar @ Tinkari Duley @ Roy, Sanatan and Manik who assaulted the deceased mercilessly causing his death and thereafter threw the dead body of the deceased in a pond called "Nutan Pukur". 3. On the basis of oral complaint, Khandaghosh P.S. Case No.80/90 was started and on usual investigation, Charge sheet no.11 dated 27.02.1991 under sections 302/34 of the Indian Penal Code was submitted by the investigating officer against the respondents/accused persons to face the trial in open Court. 4. After the case was committed to the Court of Sessions and the learned Sessions Judge having taken cognizance of the offence under section 193 Cr.P.C. the case was transferred to the Court of Additional Sessions Judge, 1st Court, Burdwan for trial who held the trial after framing of the charges under section 302, 34 I.P.C. against the accused persons/respondents herein to which each of them pleaded not guilty and claimed to be tried. 5. Prosecution examined as many as 12 witnesses to substantiate the charges levelled against the accused persons/respondents herein. After the conclusion of the evidence the accused persons were examined under section 313 Cr.P.C. to which each of them declined to adduce evidence and pleaded innocence. 6. The Learned Judge, by the judgment impugned was pleased to hold that prosecution has failed to prove its case beyond all reasonable doubt and accordingly the respondents were found not guilty of the offence punishable under section 302/34 I.P.C. and were acquitted under Section 235 (1) Cr.P.C. on the benefit of doubt. 7. 6. The Learned Judge, by the judgment impugned was pleased to hold that prosecution has failed to prove its case beyond all reasonable doubt and accordingly the respondents were found not guilty of the offence punishable under section 302/34 I.P.C. and were acquitted under Section 235 (1) Cr.P.C. on the benefit of doubt. 7. The judgment under appeal before us, has been assailed inter alia, on the ground that the learned trial Judge has failed to appreciate the evidence of four eye witnesses, namely, P.W.1- Susanta Kumar Dawn (informant), his brother Anup Kumar Dawn -P.W.2, Sadhan Kumar Chandra-P.W.4 and Sisir Kumar Dawn-P.W.6 who have corroborated each other with regard to the incident and commission of crime by the accused persons/respondents herein who dragged the victim deceased Ajit Kumar Dawn to the house of accused Hari Sadhan Roy and they assaulted the victim mercilessly after having tied him with the pole. 8. It is submitted by Mr. Neguive Ahmed, learned Additional Public Prosecutor that the dead body of Ajit Kumar Dawn was recovered from the pond, namely, "Nutun Pukur" and that PW7, namely, Sm. Tulsi Dawn had told the complainant and his brother Anup Kumar Dawn that she had seen the accused persons threw the dead body of the deceased in the pond, but the said Sm. Tulsi Dawn denied having made such statement and deposed as such before the Court due to pressure of the accused persons which the learned Judge ought to have considered. It is also argued that the accused persons were present at the scene and assaulted the deceased. There may be some discrepancies in the evidence of the eye witnesses but those being minor discrepancies, do not go to the root of the prosecution case and has accordingly in view of the ratio of the decision reported in 1985 Cr.L.J. 1173 (Supreme Court), that conviction may be based on the evidence of truthful eye witnesses and as in this case there are four eye witnesses corroborating each other, the learned Judge ought to have believed them and convicted the accused persons. 9. Now, we are called upon to critically examine the evidence of P.W.1, P.W.2, P.W.4 and P.W.6 with that of the P.W.7 to ascertain as to whether there has been at all any error on the part of the learned trial Judge for not having considered the oral ocular testimony of the eye witnesses. 10. 9. Now, we are called upon to critically examine the evidence of P.W.1, P.W.2, P.W.4 and P.W.6 with that of the P.W.7 to ascertain as to whether there has been at all any error on the part of the learned trial Judge for not having considered the oral ocular testimony of the eye witnesses. 10. In connection with the Khandaghosh P.S. Case No.80/90 dated 28.8.90 under sections 364, 342, 302, 201, 34 of the Indian Penal Code, inquest was held by the investigating officer who found the deceased lying supine on a mat made of date leaves on the verandah. He had seen blood come out from the two sides of the open mouth, the left ear and nostril. There were marks of bruises on the back, hip and left thigh of the deceased. There was mark of slight injury on the back side of the left arm pit and scratch mark injury on two elbows and it transpired from primary investigation that on 27.8.1990 the accused Hari Sadhan Roy and others took the deceased to the house of Hari Sadhan Roy by dragging him forcibly, beat him to death and dumped the dead body into a pond. The dead body was sent to Medical College Morgue through constable no. 1726, Basudeb Mondal for Post Mortem. 11. Prosecution has adduced in evidence Post Mortem Report before the trial Court which has been proved by Dr. Rabindra Nath Karmakar of Department of Forensic and State Medicine, R.G. Kar Medical College and Hospital who was then posted in the Department of Forensic and State Medicine of the Burdwan Medical College and Hospital. Then he held autopsy on the dead body of Ajit Kumar Dawn and found the following injuries: 1. One abrasion 3" 4" x ½ (illegible ) on the right side of lung point of back of abdominal wall 2" of right of midline and 40½ above right head. 2. One abrasion 4" x ½" placed more or less (illegible) 2½ being placed on the right of midline and 1½" being placed on left of midline on the back of chest-wall 48½" above right-back. 3. Two pin point penetrated wound at (illegible) of .03" on the mid-point of medial mirgin of right foot. On dissection he found the following injuries :- (1) Extra vasation of blood 1½" x 1" difused of the soft tissues under injury no.3 mentioned above. 3. Two pin point penetrated wound at (illegible) of .03" on the mid-point of medial mirgin of right foot. On dissection he found the following injuries :- (1) Extra vasation of blood 1½" x 1" difused of the soft tissues under injury no.3 mentioned above. (2) Extra vasation of blood 5" x 2½" difused over right seapular region on the back of chest wall. 12. In the opinion of the Autopsy Surgeon death was due to effect of drowning ante mortem in nature. According to him, abrasion found on the dead body of the dead person could be possible on coming in contact with hard and blunt substance by fall. At the same time, the doctor had opined that extra vassation blood as mentioned in the P.M. Report is not possible by simple contact with hard and blunt substance. Such injuries are possible if there would be some forceful striking with the hard substance as mentioned in his report. It is also possible that a person suffering from asthma like disease in a tied condition may lose physical capability. The drowning as noted in the P.M. Report may be accidental in nature. 13. Learned counsel for the appellant submits that the prosecution evidence finds corroboration with the medical evidence. 14. Now, let us scrutinise the evidence of so-called eye witnesses. P.W.1 is the son of the deceased. On 27th August, 1990, at about 10-10.30 P.M. at night when he along with his brother were returning to bed after meal, heard some noise and the voice of his father "Keno dhare niye jachhis" . So, in the light of the torch through the open window P.W.1 saw Hari Sadhan Roy, Kinkar Roy, Manik Roy and Sanatan Roy dragging his father. P.W.1 opened the key of the door and got down from the upstairs and met Sadhan Chandra and Sisir of his village and saw that the said four accused persons took his father towards the house of Hari Sadhan Roy. He reached the house of Hari Sadhan Roy and saw his father was tied in a khuti on the eastern compound of his house. He also saw Biswanath Santra and Nemai Malik and saw Sadhan assaulting his father mercilessly with lathi. He reached the house of Hari Sadhan Roy and saw his father was tied in a khuti on the eastern compound of his house. He also saw Biswanath Santra and Nemai Malik and saw Sadhan assaulting his father mercilessly with lathi. On hearing voice of P.W.1 he lighted torch and saw his brother standing there and he raised his lathi and assaulted his brother Biswanath and Nemai and attempted to assault his brother Anup Kumar Dawn-P.W.2. But on being held out threat on them they left the place and returned to their house. In the morning, mother of Samar Dawn, khurtuto Thakurma of P.W.1, reported that his father was killed and thrown into the tank known as "Nutun Pukur" and when they reached at the tank, the accused persons namely, Kinkar Roy and Nemai Malik told him that his father went away from a particular direction and after searching in the pond he found his father on the north-eastern side of the tank. His dead body was removed with bruises on his body. Yet, Hari Sadhan, the accused had held out threat on him saying "dekhe nebo". According to P.W.1, the accused Hari Sadhan Roy and Kinkar Roy used to purchase articles from his father's grocery shop. As there was a relationship of credit and debit between shop-owner and the buyer, the accused persons had not paid for what they had purchased. According to P.W.1, his father suffered from asthma all along. There were many people in crowd near the pond when the dead body of father of P.W.1 was taken out from the tank and many of them who are the family members of the accused persons were present there. 15. According to P.W.2, Anup Kumar Dawn, the younger brother of P.W.1 and son of the deceased, he woke up from sleep at about 10 P.M. at night when he learnt from his brother that four persons were taking away his father through an alley. He followed his brother to the said direction and met Sadhan and Sisir Dawn who told that his father was dragged to a particular direction and his elder brother told him that by the light of a torch he saw Hari Sadhan Roy, Kinkar Roy, Sanatan Roy and Manik dragging away his father and he learnt that his father was taken to the house of Hari Sadhan. He rushed to the house of Hari Sadhan and found that his father was tied with a peg on the eastern-side compound of Hari Sadhan's house and he was being assaulted with lathi when Biswanath and Nemai were also present and were assaulting his father with fists and blows. On being asked as to why they were assaulting his father, Biswanath and Nemai chased him with lathi. So he came back to his house and due to threat on him he did not go out of the house. The oral testimony on this score by P.W.1 and P.W.2 taken together appears to us to be quite unnatural that when the father is being tied with the peg and being assaulted by the accused persons/respondents, the said witnesses being sons of the deceased would leave the place without making any counter attack on the assailants or without reporting the matter to police or to any of their co-villagers and upon returning from the place of occurrence would retire in house at night. According to P.W.2, in the following morning at 5.30 A.M. he reached the tank but he did not see any one of his village near the tank. The oral testimony of P.W.2 is merely hearsay evidence, the source being the P.W.1 and other two persons of the village, namely, Sadhan Kumar Chandra and Sisir Kumar Dawn, who are P.W.4 and P.W.6 respectively. As per the oral testimony of P.W.4, he heard sound from his tank and proceeded towards the tank but before that he saw Sisir Dawn, one of his friends, coming therefrom. He was then carrying a torch. On his asking, Sisir told him that some people were taking away Ajit Dawn and from Hari Sadhan, he learnt that Hari Sadhan, Kinkar, Sanatan and Manik were taking away Ajit. So this witness had not seen the accused persons/respondents herein having dragged the deceased. He then came to the house of Ajit and asked Hiru and Piru alias Susanta and Anup about what had happened and the latter told him that they have seen their father was taken away. Thereafter, he went to the house of Hari Sadhan Roy and found Ajit died in the compound of Hari Sadhan Roy and also saw Biswanath Santra and Nemai assaulting him with the help of lathi. Thereafter, he went to the house of Hari Sadhan Roy and found Ajit died in the compound of Hari Sadhan Roy and also saw Biswanath Santra and Nemai assaulting him with the help of lathi. His elder brother-Sristhidhar also went there and asked them to release Ajit Dawn and the Panchayat Sadasya, Murari Mohon Roy also asked them to release Ajit Dawn and not to assault him. P.W.4 returned home and in the morning learnt that Ajit was dead. He had narrated all these facts to the police. 16. When confronting to the I.O. Sri Gour Sundar Roy- P.W.11, he stated that P.W.4- Sadhan Kumar Chandra did not say that he heard a sound coming from a tank situated on the south-east side to his house. P.W.4 did not state to the I.O. that he went to the place with a torch in his hand. P.W.4 stated on oath during cross-examination that he did not inform about the incident to anybody except the police. 17. P.W.5-Rabindra Nath Goswami went to the house of the deceased on 28.8.1990 as he learnt about his death and saw bruises on the body and marks of blood oozing from the ear, mouth and nose whereas the investigating officer who held inquest over the dead body has stated that he did not observe any blood mark on the dead person. Obviously, he is a witness to the inquest held by the I.O. over the dead body of the deceased, but he has no personal knowledge as to wherefrom the dead body was recovered and about the incident. Therefore, his evidence is of no help to the prosecution. According to the appellant, Sisir Kumar Dawn-P.W.6 is also an eye witness to the occurrence who heard a noise in front of the house of Ratan Daw and he went to the said place and with the torch light he saw Kali da alias Ajit caught by Hari Sadhan being taken from Ratan Daw's house shouting "Dhar Salake, Mar Salake". By this time, Sadhan Chandra also came and saw what was happening. Then he went in front of the house of Ajit Dawn when Susanta and Anup, both sons of Ajit, were coming out of their house and the said fact was narrated to them. According to P.W.6, they had also told that they had also seen the four accused persons taking away Ajit Dawn. Then he went in front of the house of Ajit Dawn when Susanta and Anup, both sons of Ajit, were coming out of their house and the said fact was narrated to them. According to P.W.6, they had also told that they had also seen the four accused persons taking away Ajit Dawn. Thereafter they left for Hari Sadhan's house and found the deceased having been tied with a khuti in the house of Sadhan when Nemai Malik and Biswanath Santra were assaulting him with a lathi. Panchayat member, Murari Mohon Roy also came there along with ex-Panchayat Member Ram Pada Malik and they asked the accused persons not to assault Ajit. On the following morning on 28.8.90 he learnt from Susanta that the said accused persons killed his father and had thrown him into the tank and he had seen Anup Dawn recovering the dead body of his father from the water of the tank and taken to his house and this witness saw injuries on the dead body of Ajit. Admittedly, Ajit happened to be the son of jethamasay (cousin brother). Therefore, according to the version of P.W.6, Panchayat Member and the ex-Panchayat Member Murari Mohon Roy and Ram Pada Malik happened to be the eye witnesses to the incident on that night as to what happened with the deceased but the prosecution has not examined those material witnesses to substantiate the charges levelled against the accused persons beyond reasonable shadow of doubt. 18. Smt. Tulsi Dawn, P.W.7 is a witness who was declared hostile by the prosecution. However, she has stated that going to the side of the bank of the tank she found the dead body of Ajit Dawn being brought to the verandah of their house. She has not stated anything to the police in the morning about having seen the accused persons/respondents herein throwing the deceased into the water of the tank. 19. According to P.W.1 and P.W.2, being the sons of the deceased, they have learnt from P.W.7 only that it was the accused persons/respondents who had thrown the deceased into the tank but she has not corroborated the prosecution case on that score. 20. 19. According to P.W.1 and P.W.2, being the sons of the deceased, they have learnt from P.W.7 only that it was the accused persons/respondents who had thrown the deceased into the tank but she has not corroborated the prosecution case on that score. 20. P.W.8-Naba Kumar Chatterjee, is also a witness to the inquest who saw injuries on the body of the deceased and heard about the incident from his eldest son that on previous night at about 11.00 hours, Manik and Sanatan took Ajit to the house of Hari Sadhan who was assaulted on account of some dispute. But he has no personal knowledge about the incident. Thus, his evidence is of no help to the prosecution. 21. P.W.9, Subal Chandra Panja and P.W.10, Lakshmi Narayan Roy are the witnesses to the seizure list in respect of a khuti, torch etc. 22. P.W.11, Gour Sundar Ray, is the investigating officer who drew out the formal F.I.R. on the basis of oral complaint made by Sushanta Kumar Dawn proved as exhibit-7. P.W.11 submitted charge sheet against the respondents to face the trial in the open court. During cross-examination on behalf of accused Kinkar, a question was put by the defence as to whether the I.O. found any bleeding injury during inquest over the dead body of the deceased Ajit Dawn, the I.O. answered to the effect that except bruise and abrasion he did not find anything on the dead body. Therefore, so-called prosecution eye-witnesses who were present at the time of the inquest over the dead body having seen blood oozing from both sides of the mouth and nostril and the ear cannot be believed in view of the evidence deposed contrary to the said fact by the I.O. It is admitted by I.O. that he examined Panchayat Member Murari Mohon Roy and the ex-Panchayat Member Ram Pada Malik but they were not cited as witnesses to the charge sheet. There was no attempt for the seizure of lathi or dari. Sisir Kumar Dawn, P.W.6 did not state to him about hue and cry when he had gone for natural call. 23. There was no attempt for the seizure of lathi or dari. Sisir Kumar Dawn, P.W.6 did not state to him about hue and cry when he had gone for natural call. 23. On appraisal of the evidence of the prosecution witnesses, we fully agree with the findings of the learned trial Judge that the death of the deceased was due to drowning, accidental in nature as noted by the P.M. doctor and the P.M. Report also does not support any blood found on the person of the deceased. The evidence adduced by P.W.1, P.W.2, P.W.4 and P.W.6 having seen the deceased tied with a khuti has also not being substantiated. Non-examination of material witnesses, namely, Sristhidhar, Murari Mohon Roy and Ram Pada Malik does create doubt in the judicial mind as to what had happened at night in the house of Hari Sadhan Roy. According to the evidence of P.W.1 and P.W.2, they had learnt from Tulsi Dawn, P.W.7 about throwing the deceased Ajit Dawn into the pond but she has denied having made such statement before the investigating officer. 24. Therefore, the learned trial Judge has rightly doubted in the prosecution case and held the accused persons/respondents were not guilty of the charges as it would be unsafe to record order of conviction against the respondents on the basis of anecdotal evidence. 25. In the context of the above discussion and having given anxious consideration to the facts and circumstances of the instant case, we do not find any ground to interfere into the impugned judgment and order dated 21.04.1995 by which the respondents were found not guilty of the offence punishable under Sections 302/34 I.P.C. and were acquitted from the said charges on the benefit of doubt. Accordingly, the Appeal is dismissed. Certified copy of this order, if applied for, be given to the parties on priority basis.