JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The present appeal has been preferred against the judgment of conviction and order of sentence, both dated 22.01.2004 passed in Sessions Case No. 244 of 1993/ 73 of 2003 passed by learned 6th Additional District and Sessions Judge, Fast Track Court, Dumka, whereby the sole appellant has been convicted for the charge under Section 304 Part II of the Indian Penal Code and awarded rigorous imprisonment for 3 years. 3. The prosecution case as per 'fardbeyan' (Exbt.-3) of the informant (PW-6), is that on 15.05.1992 at about 10 p.m., the informant (Mahasan Marandi) invited the accused/appellant, Manjhi Murmu @ Kara Manjhi to take meal at his house. The informant took the Kara Manjhi (appellant) to his house, since the Kara Manjhi (appellant) is completely blind. As there was need of money to the informant and the appellant was having some money with him as he has been given money by the Government. While they were inside the house, the father of the informant was abusing his mother, due to which hot exchange of words were going on. Thereafter, the appellant, Manjhi Murmu @ Kara Manjhi also intervened into the matter. Then informant's father said, that it is his family matter, he should not intervene in the matter. Thereafter scuffle took place between father of the informant and the appellant and thus, the informant's father has fallen on the ground. It is further stated that the appellant used to keeps stick/danda with himself, as he is a complete blind man. Subsequently, when his father was in lying condition on the ground, the appellant started indiscriminate assault on the chest and abdomen of the father of the informant, due to which his father sustained injury and thereafter, the appellant went to his house. It is also alleged that neither his mother nor the informant has tried to rescue his father either by catching-hold of the appellant or by saving his father. After the appellant/accused went away, the informant took his father, on the bed inside the room and in the morning, his father died at 8.00 a.m. On the basis of the aforesaid 'fardbeyan' of the informant, Masalia P.S. Case No.34 of 1992 (dated 15.05.1992) consequent to G.R. No. 477 of 1992 under Section 302 of the Indian Penal Code has been instituted. 4. 4. The cognizance of the offence has been taken vide order dated 11.01.1993 and the case has been committed to the Court of Sessions vide order dated 09.06.1993. 5. The charge has been framed against the accused/appellant under Section 304 of the Indian Penal Code on 20th June, 2001 to which the accused pleaded not guilty and thus, he was put under trial. 6. The prosecution in order to prove its case has examined six witnesses and also adduced documentary evidence. Pandhari Murmu has been examined as P.W.1. Dr. Ramesh Prasad Verma has been examined as P.W.2. Rasmuni Tudu has been examined as P.W.3. Satyanarayan Mirdha has been examined as P.W.4. Ramswarath Singh, Investigating officer, of the case has been examined as P.W.5. Mahasan Marandi, informant of the case has been examined as P.W.6. The signature on the fardbeyan of witness, P.W.1 has been proved and marked as Exhibit-1. Post- mortem report as Exhibit-2. Fardbeyan as Exhibit-3 and the formal First Information Report as Exhibit-4. 7. Pandhari Murmu (P.W.1) is not a eye-witness to the occurrence. This witness during examination-in-chief, has stated that, after hearing hulla, he went there and saw the dead-body of Vakil Marandi. He has proved his signature on the ‘fardbeyan’ as Exhibit-1. During cross-examination, this witness has stated that Manjhi Murmu (appellant) is blind since his birth and his movement is on the basis of assumption with the help of lathi. This witness has seen the dead-body in the next morning, where Sub Inspector and Chawkidar were present. There is nothing in the evidence of P.W.1, which goes against the appellant (Manjhi Murmu) as he is a hearsay witness. 8. Dr. Ramesh Prasad Verma has been examined as P.W.2, who has conducted the post-mortem examination on the deceased, Vakil Marandi. This witness (Doctor) has found three injuries:- (1) Defused swelling over the left parietal region of the Scalp. (2) Multiple bruises over both side of the chest. (3) On dissection of abdomen, liver was found rupture and huge collection of blood was found in abdominal cavity. Doctor has opined that death is due to shock and haemorrhage, as a result of injuries mentioned above which have been caused within 48 hours and proved the post-mortem as Exhibit-2. 9. Mr. (3) On dissection of abdomen, liver was found rupture and huge collection of blood was found in abdominal cavity. Doctor has opined that death is due to shock and haemorrhage, as a result of injuries mentioned above which have been caused within 48 hours and proved the post-mortem as Exhibit-2. 9. Mr. Manoj Kumar, learned counsel for the appellant has submitted that, injury No.1 i.e. defuse swelling over the left parietal region of the scalp is an injury which has not been disclosed in the First Information Report nor stated by any of the witnesses examined in the Court and as such, the death of the deceased was not caused, as alleged in the First Information Report due to assault made by the appellant. He has further submitted, that non-explanation about the injury no.1, is fatal to the prosecution case and the benefit of doubt may be granted in favour of the appellant, who is completely blind since his birth. 10. Mr. Manoj Kumar, learned counsel for the appellant has further submitted that, it appears from the evidence brought on record by the prosecution, that the death of father of the informant was because of some reason, since this appellant did not lend money to the informant and as such, appellant has been falsely implicated in this case. He has further submitted, that none of the witnesses examined in this case has proved presence of the appellant at the time of alleged occurrence in the house of the informant and the evidence of mother and son are also not reliable, as none of them have explained about the injury no.1, caused upon the deceased and as such, false implication of the appellant cannot be ruled out and the learned trial court has passed the impugned judgment without considering the material available on record and thus, impugned judgment of conviction is perverse and cannot be sustained in the eyes of law. 11. Mr. Moti Gope, learned Additional Public Prosecutor, appearing for the State has submitted, that from the perusal of the record, it is apparent that injury no.1 has not been explained by the prosecution witnesses, but such injury may be caused upon a person during scuffle, when the person fall on the ground. Thus has prayed that the impugned judgment of conviction and order of sentence warrants no interference by this Hon’ble Court at this stage. 12. Thus has prayed that the impugned judgment of conviction and order of sentence warrants no interference by this Hon’ble Court at this stage. 12. Rasmuni Tudu, wife of the deceased has been examined as P.W.3. This witness during examination-in-chief, has stated that appellant, Kara Murmu was taking dinner with her son in her house and her husband was asking their son to go to Assam for livelihood and for that this witness was assaulted by fist and at that time, Kara Manjhi assaulted her husband by 'lathi' on chest and abdomen. During cross-examination, this witness has stated that none of the persons stopped Kara Manjhi from assaulting nor any person has tried to caught-hold of her husband or Kara Manjhi for rescue of her husband. 13. Learned counsel for the appellant has submitted that even the deposition of the wife of the deceased or the mother of the informant has not disclosed about the injury no.1, caused on the head of the deceased rather, as per the evidence adduced in the Court below, Kara Manjhi has only assaulted on the chest and abdomen and it seems that the natural conduct of the witness is under suspicion, when this witness has stated that, none of the persons has stopped Kara Manjhi from assaulting her husband nor any person tried to caught hold of her husband or Kara Manjhi (appellant) and as such, evidence adduced by P.W.3 (Rasmuni Tudu) cannot be relied upon as the same is not true version against the appellant, who has refused to pay money to her son as they were demanding from him. 14. Mr. Moti Gope, learned Additional Public Prosecutor, appearing for the State, has further submitted, that it is true that P.W.3 has only alleged against the appellant, Kara Manjhi as he has assaulted the deceased on the chest and the abdomen and those injuries were found by the Doctor (P.W.2). Further, the learned Additional Public Prosecutor, has fairly submitted that, this witness has also not stated about the injury no.1 caused upon the deceased (Vakil Marandi), which is on the scalp as it is apparent from the record. 15. Satyanarayan Mirdha has been examined as P.W.4. Further, the learned Additional Public Prosecutor, has fairly submitted that, this witness has also not stated about the injury no.1 caused upon the deceased (Vakil Marandi), which is on the scalp as it is apparent from the record. 15. Satyanarayan Mirdha has been examined as P.W.4. This witness during examination-in-chief, has stated and disclosed, that he along with villagers went to the house of Mahasan Marandi, when informant informed them, that his father (Vakil Marandi) was assaulted by Kara Manjhi and his father died, whom informant was planning to take Hospital for treatment in the morning. When he came to the house of the informant in the morning, he saw the dead-body of Vakil Marnadi. This witness has stated that village comprises of 20/25 houses, but when he went to the house of Mahasan Marandi (P.W.6) at that time, no body was there except in-mates of the house. He has not seen appellant, Kara Manjhi there. 16. Learned counsel for the appellant has submitted that Satyanarayan Mirdha (P.W.4) is a hearsay witness and he got information on the basis of the disclosure made by the informant. 17. Mr. Moti Gope, learned Additional Public Prosecutor, appearing for the State, has submitted and accepted that this witness is a hearsay witness, who has seen the injured in the night and the dead-body in the morning, but no other villager was present there and he disclosed before the court to the extent that he has been informed about the incident by the informant (Mahasan Marandi -P.W.6). 18. Ramswarath Singh, investigating officer, of the case has been examined as P.W.5. This witness has stated, that he got information about murder of a person and for verification, he went to the village at 4 p.m. on 16.05.1992. This witness has proved the signature of the informant, Mahasan Marandi as Exhibit-3, on the basis of which First Information Report being Masalia P.S. Case No.34 of 1992 has been instituted and the formal First Information Report in the handwriting of Munshi, B. K. Chauhan as Exhibit-4. This witness has further stated that, on the north of the house of the informant, the house of Sahdeo Marandi and Charan Marandi are situated. In the south, there is handpump and in the east, the house of Gora Marandi and in the west, open field is there. This witness has further stated that, on the north of the house of the informant, the house of Sahdeo Marandi and Charan Marandi are situated. In the south, there is handpump and in the east, the house of Gora Marandi and in the west, open field is there. The Investigating officer has further stated that, he has not seen any mark of the blood on the place of occurrence nor any noticeable thing was found at the place of occurrence and after recording the statement of the witnesses, sent the dead-body for post-mortem examination. On the direction of the superior officer, charge-sheet was submitted. During cross-examination, this witness has stated that accused, Manjhi Murmu@ Kara Manjhi is blind since birth and he came at the place of occurrence, himself as he walks with the help of lathi. He has recorded the statement of the accused. 19. Mr. Manoj Kumar, learned counsel for the appellant, has further submitted, that as per the prosecution case, there was scuffle in the courtyard and indiscriminate assault was made by the appellant through lathi on the chest and abdomen of the deceased (Vakil Marandi), but the Investigating officer has not mentioned the dimension of the courtyard where such indiscriminate assault by lathi or ‘danda’ can be made or not, nor any noticeable thing has been found at the place of occurrence which would suggest that any scuffle has been taken place in the courtyard of the informant and without proper investigation, the Investigating officer has made this appellant as an accused, who is blind since his birth, only on the basis of the statement given by the informant (P.W.6- Mahasan Marandi) and his mother, Rasmuni Murmu (P.W.3), who have grudge against the appellant as the appellant was asked to lend some money to him, which was not done by the appellant and as such, under such sketchy evidence, the appellant cannot be convicted, when the injury no.1 found on the head of the deceased has not been explained properly either by P.W.3 (Rasmuni Tudu) or P.W.6 (Mahasan Marandi) or P.W.5, Investigating officer of the case. 20. Mr. 20. Mr. Moti Gope, learned Additional Public Prosecutor, appearing for the State, has submitted that Investigating officer has recorded the statement of the witnesses, who have supported the case and on the basis of that, charge-sheet has been submitted and there is nothing on record which goes to prove that investigation has not been done properly. 21. Mahasan Marandi has been examined as P.W.6. This witness has stated during examination-in-chief, that 11 years ago, the occurrence took place in the night at 10 P.M. He has invited Manjhi Murmu to his house. The informant has to ask for some money from appellant and offered him dinner, and at that time his father was not present, but came subsequently, and as soon as his father came, his father started quarreling with his mother. Thereafter Kara Manjhi @ Manjhi Murmu, appellant asked his father why he is quarreling. Thereafter scuffle took place in which father of the informant was thrashed by Manjhi Murmu and thereafter assaulted on the chest and other portions by lathi and subsequently Kara Manjhi went to his own house. This witness has stated, during cross-examination, that Manjhi Murmu @ Kara Manjhi has not given money to him. His village comprises of 60 houses and scuffle took place for an hour. This witness has further stated, during cross-examination, in Para-10 that, his father was brought on cot with his help and he (Mahasan Marandi) gave his 'fardbeyan' at the Police Station at 8.00 a.m., as the Police Station is situated at a distance of 4-5 Kilometer from his house, where he went on foot. The Sub Inspector came with him, his statement was recorded by the Sub Inspector, on which he has given left thumb impression. He was at the Police Station for an hour. This witness has further stated that when scuffle was going on between Manjhi Murmu and his father, he did not interfere rather, he removed Manjhi Murmu. Jaya Marandi also went for separating them and hulla was continued for an hour. This witness has further stated in para-5 of his cross-examination, that at the time of occurrence, Gora Marandi, Jaya Marandi came and his wife was also present and apart from the appellant, five persons were there but none of the persons of the house of Manjhi Marandi was there. This witness has further stated in para-5 of his cross-examination, that at the time of occurrence, Gora Marandi, Jaya Marandi came and his wife was also present and apart from the appellant, five persons were there but none of the persons of the house of Manjhi Marandi was there. This witness has further stated in Para-7 of his cross-examination, that Gora Marandi and his wife did not do anything and Manjhi Murmu was having lathi at the time when scuffle took place between Manjhi Murmu and his father. After the occurrence, the lathi of Manjhi Murmu was snatched by him, which was shown to the Police, but the Police has not seized the same. This witness has stated that, his fardbeyan which was recorded by the Sub Inspector bears signature of Pandhari Murmu, Lodo Mirdha, Jona Hembrom and thumb impression of his mother, Rasumuni Tudu. He came along with the dead-body for post-mortem examination and after post-mortem examination, he returned to his house at 4.00 p.m. with deadbody. This witness was given suggestion as the Manjhi Murmu (appellant) has not provided money to him and as such, he has been falsely implicated in this case. 22. Mr. Manoj Kumar, learned counsel for the appellant has further submitted that, as per the statement of the informant made in Para-10 of his cross-examination, his statement was recorded at the police Station by the Sub Inspector, on which he has put his thumb-impression, but the prosecution has not brought that ‘fardbeyan’ recorded at the Police Station before the Court and the present ‘fardbeyan’ which is basis of the present case is not the same rather, this ‘fardbeyan’ was recorded at 4.00 p.m. in the house of the informant, Mahasan Marandi (P.W.6) and as such, the true version of the prosecution case has not been brought before the Court. Apart from the fact, that this witness has also not stated anything which could explain injury no.1 caused on the scalp of the deceased. Furthermore, the lathi, which has been snatched from the appellant, as alleged by this witness, who is informant of this case, has not been brought to the court and as such, under such scanty evidence, the judgment of conviction under Section 304 Part II of the Indian Penal Code cannot sustain in the eyes of law. The appellant, who is blind since birth is entitled to benefit of doubt. 23. Mr. The appellant, who is blind since birth is entitled to benefit of doubt. 23. Mr. Moti Gope, learned Additional Public Prosecutor, appearing for the State, has further submitted that, it is true that this witness has admitted in Para-10 of his cross-examination that the ‘fardbeyan’ was recorded by the Sub Inspector at the Police Station, but because of the fact that the informant is illiterate who has put his thumb-impression, he could not distinguish between the ‘fardbeyan’ recorded at his house or at the Police station and as such, no infirmity is there in the prosecution case. 24. Learned counsel for the State, Mr. Moti Gope, Additional Public Prosecutor, has further submitted, that the informant is an eyewitness to the occurrence and has taken out the appellant, Manjhi Murmu when he was fighting with his father, Vakil Marandi and also snatched his lathi and as such, his testimony cannot be disbelieved. 25. Upon this, learned counsel for the appellant has submitted that even the lathi has not been brought on record by the informant, Mahasan Marandi (P.W.6), as stated in the ‘fardbeyan’ or the evidence of another witness, P.W.3 (Rasmuni Tudu). When the evidence of P.W.3 (Rasmuni Tudu) and the evidence of informant, Mahasan Marandi (P.W.6) is compared with each other, then it appears that it is exaggerated form of statement of this witness Mahasan Marandi (P.W.6) who says that, he intervened in the matter and removed the appellant, Manjhi Marandi while he was fighting with his father. Neither same version was recorded in the ‘fardbeyan’ nor same version was given by his mother. 26. Further the trial court has recorded the statement of the accused under Section 313 Cr.P.C. Appellant denied the allegation levelled against him and after hearing the parties and on perusal of the record, the learned trial court has convicted the appellant vide impugned judgment of the conviction and order of sentence, both dated 22.01.2004. 27. After hearing Mr. Manoj Kumar learned counsel for the appellant and Mr. Moti Gope, learned Additional Public Prosecutor and on re-examination of the material available on records, i.e. fardbeyan and the deposition of six witnesses and the exhibits, this Court is of the opinion that the prosecution has not brought the true version of the incident. The non-explanation of injury No.1, of the deceased, Vakil Marandi is fatal for the prosecution. Moti Gope, learned Additional Public Prosecutor and on re-examination of the material available on records, i.e. fardbeyan and the deposition of six witnesses and the exhibits, this Court is of the opinion that the prosecution has not brought the true version of the incident. The non-explanation of injury No.1, of the deceased, Vakil Marandi is fatal for the prosecution. Nor the prosecution has established that this appellant is the only person, who has caused, death of the deceased, but the prosecution has miserably failed in explaining injury no.1, which is fatal for the prosecution case, apart from this fact, the lathi which was seized by the informant was not brought before the Court and admitted case is that the appellant is blind since his birth. This Court is of the opinion that the natural conduct, as explained by P.W.3 or the informant (P.W.6) in the ‘fardbeyan’ that none of them intervened when his father was quarreling and scuffling with the appellant, Manjhi Murmu @ Kara Murmu. The informant tried to develop the case by saying that he removed Manjhi Murmu, who was scuffling with his father and also snatched lathi, which was shown to the Sub Inspector then the entire evidence led by his mother and the statement of the informant in his fardbeyan, becomes highly contradictory and doubtful as they have stated that the appellant/accused, Manjhi Murmu went to the house, who is complete blind and moves only with the help of a lathi on the basis of assumption. Furthermore, none of the witnesses have stated or examined to prove that the appellant, has ever visited the house of the informant. 28. Under the above facts and circumstances, when the prosecution has miserably failed to prove that it is only the appellant/accused, who has killed the Vakil Marandi, as injury no.1 has not been explained by the prosecution, coupled with the aforesaid discussion, the benefit of doubt must go in favour of the appellant. 29. Thus, the impugned judgment of conviction and order of sentence both dated 22.01.2004 passed in Sessions Case No. 244 of 1993/73 of 2003 by learned 6th Additional District and Sessions Judge, Fast Track Court, Dumka, is set aside by giving benefit of the doubt in favour of the appellant. 30. The appellant who is on bail, is discharged from the liability of his bail bonds. 31. In the result, the instant appeal stands allowed. 30. The appellant who is on bail, is discharged from the liability of his bail bonds. 31. In the result, the instant appeal stands allowed. 32. Let a copy of this judgment and the L.C.R. be sent to the concerned trial court at once.