JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against judgment and order dated 29.8.2012 and 30.8.2012 passed by learned Additional District and Sessions Judge, Fast Track Court, Khatra, Bankura in Sessions Case No. 1(6)/11 arising out of Sessions Case No.3(3)/11 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/-, in default, to suffer simple imprisonment for five months more. 2. The prosecution case, as alleged against the appellant, is to the effect that on 13.9.2010 at 3.00 P.M., the appellant took the victim, Swapan Halder towards the Bibarda jungle where he assaulted him on the head with a stone. This was witnessed by Sandip Ghosh, P.W.1 and Kajal Khan, P.W.9 and others. Seeing them, the appellant fled away. The victim was taken to the chamber of Dr. Satya Sadhan Das for treatment and he was thereafter shifted to Bankura Sammilani Medical College and Hospital where he was admitted and expired on the next day. Thereafter, his brother, P.W.17, lodged written complaint at the police station which was scribed by P.W.1 resulting in registration of Taldanga P.S. Case No.48 of 2010 dated 14.9.2010 under Section 302 of the Indian Penal Code against the appellant. The case was committed to the Court of Sessions and transferred to the Court of the Additional District and Sessions Judge, Fast Track Court, Khatra, Bankura for trial and disposal. 3. Charge was framed against the appellant under Section 302 of the Indian Penal Code. To prove its case, prosecution examined 17 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. 4. In conclusion of trial, the Trial Judge by the impugned judgment and order dated 29.8.2012 and 30.8.2012 convicted and sentenced the appellant, as aforesaid. 5. Learned Counsel appearing for the appellant argued that the evidence of P.W.1 and P.W.9, the eye witnesses, suffer from patent contradictions and/or improbabilities. P.W.1 in cross-examination made contradictory statement with regard to the place where he was playing football when the incident occurred. He also admitted that 40/50 people had already arrived at the spot when he came there. While P.W.1 claimed that they were playing football in the ground the other eye-witness (P.W.9) stated that they were playing cricket. P.W.1 in cross-examination made contradictory statement with regard to the place where he was playing football when the incident occurred. He also admitted that 40/50 people had already arrived at the spot when he came there. While P.W.1 claimed that they were playing football in the ground the other eye-witness (P.W.9) stated that they were playing cricket. Although the said witnesses stated that they shifted the victim to the Chamber of Dr. Satya Sadhan Das and thereafter to Bankura Sammilani Medical College and Hospital, no complaint was lodged against the appellant on that day. Endorsement in the bed head/out door tickets also do not disclose the name of the appellant as the assailant of the victim. Hence, it is doubtful whether P.W.1 and P.W.9 eye witnesses of the incident and it appears the appellant was falsely implicated in this case after the death of the victim on mere suspicion. Hence, the appeal is liable to be allowed. 6. Learned Counsel appearing for the State submitted that the P.W.1 and P.W.9 have consistently narrated the role of the appellant in assaulting the victim with a stone on the head. Their evidence ought not to be thrown out due to minor contradictions. On the other hand, their ocular version is corroborated by post mortem Doctor, P.W.16. Hence, the appeal is liable to be dismissed. 7. From the rival submissions of the parties it appears that the fate of the appellant is hinged on the reliability of P.W.s 1 and 9 who claim to be eye-witnesses to the incident. P.W 1 deposed on 13th September around 4.35 p.m. he was playing football in the football playground situated beside Bibarda jungle. He heard a shout "mere dilo mere dilo" and along with Kajal Khan (P.W.9) rushed to the spot beside the jungle and found appellant assaulting Swapan Haldar with the help of a stone. Appellant was sitting on his belly while Swapan was lying on the ground. Seeing them appellant ran away. They shifted Swapan to the chamber of Dr. Satyasadhan Das. As the condition of the patient was serious he was shifted to Bankura Sammilani Medical College and Hospital in an ambulance. Victim died in the hospital on 14.9.2010. Police came to the hospital and prepared inquest. He signed on the inquest report. In cross-examination he stated that the school playground is situated on the northern side of the canal. As the condition of the patient was serious he was shifted to Bankura Sammilani Medical College and Hospital in an ambulance. Victim died in the hospital on 14.9.2010. Police came to the hospital and prepared inquest. He signed on the inquest report. In cross-examination he stated that the school playground is situated on the northern side of the canal. Playground used by the villagers is situated by the side of the school play ground. Thereafter, he changed his stance and stated that village playground is situated on the southern side of the canal at a distance of 100 cubits. He also admitted that when he came to the spot they were 40/50 persons. 8. P.W. 9, Kajal Khan deposed he along with other villagers were playing cricket at the playground. After hearing a shout "mere dilo mere dilo" they went into the jungle and found appellant assaulting Swapan. Seeing them appellant ran away. Victim was shifted to Bibarda hospital and thereafter to Bankura Gobindanagar hospital where he expired on 14.9.2010. In cross-examination he admitted that there are two fields on either side of Bibarda jungle. 9. P.W 15 is the investigating officer in the instant case. He deposed he prepared rough sketch map of the place of occurrence (Ext. 9 & 9/1). Perusal of exhibit 9 shows that the investigating officer has indicated only one playground marked as 'I' on the southern end of Bibarda jungle. P.W. 15 further deposed in the course of investigation he had arrested the appellant and recovered a boulder measuring 7 kgs under a seizure list (Ext. 4/2) from the p.o. on the showing of the appellant. 10. P.W.S 14 and 16 are the medical officers who treated the victim. 11. P.W 14 posted as Associate Professor, General Surgery of NRS Medical College and Hospital at the time of occurrence. He deposed the appellant was admitted in the hospital with the head injury and had died on the next day i.e. 14.9.2010 at 11.30 a.m. He proved the admission slip, bed head ticket and treatment sheet (Ext. 7). 12. P.W 16 is the post mortem doctor who deposed that the death was due to effects of intra-cranial haemorrhage due to blunt trauma associated with other injuries. He proved the post mortem report (Ext. 10). He deposed such injury may be caused if one is assaulted with a stone. 7). 12. P.W 16 is the post mortem doctor who deposed that the death was due to effects of intra-cranial haemorrhage due to blunt trauma associated with other injuries. He proved the post mortem report (Ext. 10). He deposed such injury may be caused if one is assaulted with a stone. In cross examination, he admitted that the injuries may be caused due to fall on hard substance and if the victim is thereafter dragged on hard and rough substance. He, however, clarified that the number of injuries found on the victim is not possible if he fell down on a hard substance in a drunken condition. 13. P.W 17, Sadhan Halder is the brother of the victim and de facto complainant in the instant case. He lodged FIR (Ext. 2/2) scribed by P.W 1. 14. P.W 10 is the wife of P.W 17 and sister in law of the victim. She deposed that the victim had left the house with the appellant after lunch on the fateful day. 15. I have examined the evidence of P.Ws 1 and 9 in the light of other evidence on record, as aforesaid. On the first blush, it appears that P.Ws 1 and 9 who were playing in a nearby field had rushed to the place of occurrence upon hearing shouts "mere dilo mere dilo" and had seen the appellant assault the victim with a stone. However, deeper analysis of their evidence shows irreconcilable differences and/or inconsistencies giving rise to grave doubt whether they at all had witnessed the incident or not. Firstly, the place where P.Ws 1 and 9 were playing is uncertain. P.W 1 in his cross examination prevaricated with regard to the place where he was playing football. He claimed that the village play ground was situated beside the school playground on the northern side of the canal. Immediately thereafter he changed his stance and stated that the village playground was on the southern side of the canal at distance of 100 cubits. P.W 9 also admitted that there were two play grounds on either side of Bibarda jungle but did not state in which playground they were playing cricket. Evidence of P.W 15 in the light of the rough sketch map (Ext. 9) shows that he had not identified both the playgrounds as indicated by the aforesaid witnesses. P.W 9 also admitted that there were two play grounds on either side of Bibarda jungle but did not state in which playground they were playing cricket. Evidence of P.W 15 in the light of the rough sketch map (Ext. 9) shows that he had not identified both the playgrounds as indicated by the aforesaid witnesses. He had only identified a play ground on the southern end of the jungle which is marked as "I" in the said sketch map. He had also not ascertained the distance of the said playground from the place of occurrence where the incident occurred. The situation is further confused by the claim of P.W. 1 that he was playing football while P.W. 9 claimed that he was playing cricket in the play ground. It is nobody's case that both games were being played in the play ground simultaneously. 16. It is also nobody's case that the place of occurrence was a deserted area. P.W. 1 deposed that villagers used the pond adjacent to the canal where the incident occurred for cleaning and washing purposes. In fact, he admitted in cross-examination that 40-50 persons had already gathered at the spot when they arrived. If this version of P.W. 1 is believed, it is highly improbable that the appellant went on striking the victim with a boulder in the presence of 40-50 persons but was not apprehended by them and ran away from the spot after P.W.s 1 and 9 arrived. 17. Subsequent conduct of P.W.s 1 and 9 also leaves room for doubt whether they were eye witnesses who had seen the appellant assaulting the victim. Both the witnesses claimed that they took the victim to the chamber of Dr. Satyasadhan Das who has not been examined in the instant case. Thereafter the victim was shifted by them in an Ambulance to Bankura Sammilani Medical College where he survived for a day. Admission slip, bed head ticket and treatment-sheet has been exhibited as Ext.7 in the instant case. The history of assault in the bed head ticket reads as follows:- "Head injury due to physical assault by neighbours at 5 p.m". 18. Although, the aforesaid eye witnesses were present at the time when the victim was admitted and treated in the hospital for a day, the names of the assailants did not transpire till the victim died on the next day. 18. Although, the aforesaid eye witnesses were present at the time when the victim was admitted and treated in the hospital for a day, the names of the assailants did not transpire till the victim died on the next day. Names of the appellants as assailants are significantly absent in the history of assault noted in the bed head ticket. No FIR was lodged on that day. None of the aforesaid eye witnesses claimed that they disclosed the incident to anyone including the relations of the victim on the day of the incident. Only after the death of the victim, P.W.s 1 and 9 disclosed that they were the eye witnesses to P.W. 17 resulting in registration of first information report. This unnatural conduct of P.W.s 1 and 9 gives rise to serious doubt in my mind whether P.Ws. 1 and 9 were eye witnesses to the incident or not. 19. If their evidence is discounted there is hardly any other evidence connecting the appellant with the murder of the victim. It has been argued that the appellant was last seen with the victim as deposes by P.W. 10. Her version is neither corroborated by her husband P.W. 17 nor does it find place in the FIR lodged by the latter. Hence, I am unwilling to rely on the sole evidence of P.W. 10 with regard to the circumstance that the appellant was last seen with the victim prior to the incident. 20. Finally, the alleged recovery of boulder at the behest of the appellant also cannot salvage the prosecution case. Stone was recovered from the bank of the canal which was accessible to all. No forensic examination of the stone was undertaken to establish that the said stone was used to assault the victim. 21. In the light of the aforesaid discussion, I am inclined to extend the benefit of doubt to the appellant and acquit him of the charge levelled against him. 22. Conviction and sentence of the appellant is set aside. 23. The appeal is accordingly, allowed. 24. The appellant shall be released from custody forthwith, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure. 25. 23. The appeal is accordingly, allowed. 24. The appellant shall be released from custody forthwith, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure. 25. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 26. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree.