JUDGMENT : Ratnaker Bhengra, J: Heard the parties. 2. This criminal appeal is directed against the Judgment of conviction and order of sentence dated 22.05.2003 and 23.05.2003 respectively passed by the learned Additional Sessions Judge, Fast Track Court -I, Chaibasa in Sessions Trial Case No. 78 of 2000 whereby and where under the learned court below has convicted the appellant for the offence under Section 304 sub clause 2 of IPC and sentenced him to undergo RI for a period of 9 years and pay fine of Rs.4000/- for the offence under Section 304 sub clause 2 of IPC and in default of payment of fine appellant was to undergo further RI for 6 months. It was further ordered that any period already undergone to be set off. 3. Prosecution case, in short, as per written report dated 22-10-1999 of the informant Sahdeo Giri PW-5 is that informant has two brothers namely Pandav Sen Giri (PW-4) and Pratap Chandra Giri. Both brothers had gone to Tantnagar market on 21.10.1999 in the morning for marketing. On the same day, in evening at about 7:00 p.m., informant’s elder brother Pandav Sen Giri returned home weeping and shouting and informed that when they were returning with his brother Pratap Chandra Giri from Tantnagar market after purchasing articles accused Laxmidhar Das was also coming behind them. At about 4 p.m.when they reached near Tantnagar river, accused Laxmidhar Das suddenly attacked his brother Pratap Chandra Giri. Accused overthrew him on the ground and assaulted his brother by fists and slaps on his nose and mouth. Pandav Sen Giri tried to save Pratap Chandra Giri but he could not save him and Pratap Chandra Giri succumbed to his injuries on the spot. Informant further stated that due to night and lack of communication he could not inform in the police station at night. The reason behind the occurrence as stated by the informant is that one week ago accused had stolen some articles of the informant which were used for angeling fish and for the said reason there was some quarrel between the parties. 4. On the basis of the written report of the informant Manjhari P.S. Case No. 20 of 1999 was registered against the accused for the offence under Section 302 of IPC. 4. On the basis of the written report of the informant Manjhari P.S. Case No. 20 of 1999 was registered against the accused for the offence under Section 302 of IPC. After completion of investigation charge sheet was submitted against the accused and cognizance of the offence was taken and the case was committed to the case to the Court of Sessions. Charge was framed against the accused under section 302 of IPC to which the accused pleaded innocence and claimed to be tried. Accordingly, trial was held and at the conclusion of the trial the accused or the appellant herein was convicted and sentenced as aforesaid. Hence, this appeal. 5. Prosecution in order to prove its case examined altogether eight witnesses. PW-5 Sahdeo Giri is the informant of this case. PW-4 Pandav Sen Giri is also one of the brother of the deceased. PW-6 Bhim Sen Giri is the nephew of the deceased.PW-1 is Pravakar Giri, a boatman.PW-2 and PW-3 were declared hostile. PW-7 Tapeshwar Singh is the investigating officer and PW-8 is Dr. Jawahar Khan who conducted postmortem examination on the dead body the deceased. 6. PW-5 Sahdao Giri is the informant of this case and brother of the deceased. He has stated in his evidence that incident is of 21.10.1999 and he had gone to Dalima to see Durga Puja. He further stated that his brother Pandav Sen Giri and Pratap Chandra Giri were returning from Tantnagar Bazar. When they reached the Tantnagar river at 4’O clock in the evening then accused Laxmidhar Das assaulted his brother Pratap Chandra Giri and murdered him. This information was conveyed to him by his elder brother Pandav Sen Giri in his house at 5:30-6 O'clock. Thereafter he along with Pravakar Girvar (PW-1) went to the place of occurrence and informed about the occurrence to the Tantnagar Munda. Then he went to Manjhari police station and gave the written report. He has proved his written report which was marked as Ext.2. In his cross-examination informant has stated that he has not witnessed the incident with his own eyes but he has heard about it. 7. PW-4 Pandav Sen Giri is the brother of the deceased. He has stated in his evidence that his brother was murdered on 21.10.1999. On the day of occurrence he along with his brother Pratap Chandra Giri was returning from Tantnagar market to their home. 7. PW-4 Pandav Sen Giri is the brother of the deceased. He has stated in his evidence that his brother was murdered on 21.10.1999. On the day of occurrence he along with his brother Pratap Chandra Giri was returning from Tantnagar market to their home. When they reached near the Kharkai river then accused Laxmidhar Das came there and caught hold of his brother Pratap Chandra Giri and assaulted him with fists and kicks. Thereafter, he reached his home and along with Sahdeo Giri and Bhim Sen Giri went back to the place of occurrence. His brother Pratap Chandra Giri was murdered by the accused. They stayed with the dead body whole night for its protection. In the morning they went to the police station and Sahdao Giri informed the police. PW-4 further stated that incident occurred for angling fish and regarding the same there was dispute between the accused Laxmidhar Das and the deceased Pratap Chandra Giri. In his cross-examination PW-4 stated that he had witnessed the assault from a distance of 300 yards. The assault took place on road on which they were returning. During the incident many persons were going by the road. The assault did not take place from both the sides but only the accused was assaulting the deceased. Before he could reach the place of occurrence, the accused fled away. He was just 2 yards away from the place of occurrence when the accused ran away. He neither chased the accused nor raised any alarm. 8. PW-6 Bhim Sen Giri is the nephew of the deceased. He has stated in his evidence that on the day of occurrence he was at his house. He received information from his father that his uncle Pratap Chandra Giri was murdered by Laxmidhar Das. The murder took place at the bank of Kharkai river. After getting information about the incident he along with his uncle Sahdeo went to the place of occurrence. There was injury on the face, eyes, chest and neck on the body of the deceased. In his cross-examination, PW-6 stated that Pravakar Girvar had come with him. 9. PW-1 is Pravakar Girvar. He has stated in his evidence that on the day of occurrence he was sailing boat on the Kharkai riveri. One person informed him that a person is lying in an intoxicated condition at a little distance away. In his cross-examination, PW-6 stated that Pravakar Girvar had come with him. 9. PW-1 is Pravakar Girvar. He has stated in his evidence that on the day of occurrence he was sailing boat on the Kharkai riveri. One person informed him that a person is lying in an intoxicated condition at a little distance away. When they went there they found that person was already dead and the body was of Pratap Giri and blood was oozing from his nose and he did not see any other injuries anywhere else. In his cross-examination PW-1 stated that on seeing the dead body he informed at the house of the deceased. The house of the deceased is in the village. PW-1 further stated that he informed at the house of the deceased at 9 O’clock in the night. When he had reached the house then Pandav Giri and his son were present there. He further stated that he cannot say whether before giving his information they had already been informed. Sahdeo Giri was also present and after receiving the information they went to see the deceased. 10. PW-8 Dr. Jawahar Khan conducted post mortem examination on the dead body of the deceased Pratap Giri aged about 40 years and found following external injuries: “(i) Head smashed badly, (ii) Fracture of ribs of both side. Lower six ribs, (iii) extarcieaon of teeth. On dissection: (i) Head and neck: Subdural hematoma. Brain matters badly smeared of (ii) Thorax-fracture of ribs. Pulural cavity full blood and clots. Heart and lungs punctured. Abdomen-Empty. Doctor opined that time passed since death within 36 hours and cause of death was due to shock and hemorrhage. Regarding weapon used doctor opined hard and blunt substance, may be caused by fist and blow. He has proved the postmortem report which was marked as Ext.-6. 11. PW-7 is the investigating officer of the case. He has stated in his evidence that on 22.10.1999 he was posted at Manjhari police station as ASI. He has proved the endorsement on the written report which is in his hand writing and signature. The endorsement on the written report was marked as Ext.-2/1. Investigating officer further proved the formal FIR as EXt.-3, inquest report which was marked as Ext.-4 and seizure list of blood stained earth marked as Ext.-5. He has proved the endorsement on the written report which is in his hand writing and signature. The endorsement on the written report was marked as Ext.-2/1. Investigating officer further proved the formal FIR as EXt.-3, inquest report which was marked as Ext.-4 and seizure list of blood stained earth marked as Ext.-5. Investigating officer inspected the place of occurrence from where dead body of the deceased was recovered which is in Tantnagar mouza near the Kharkai river 150 yards South of Kurshan place. In his cross-examination investigating officer stated that he had not sent the blood stained earth to the forensic centre for examination. Arguments of learned counsel for the appellant: 12. Learned counsel for the appellant has first and foremost submitted that there is delay in lodging of the FIR. Incident is of 21.10.1999; however, the FIR was lodged only on the next day at 1:00 p.m. Learned counsel has argued that death has taken place but informant has not taken pains to inform the police on the same day occurrence which makes the entire prosecution case doubtful. 13. Learned counsel for the appellant further argued that PW-5, who is the informant of the case, is himself a hearsay witness and therefore, he is not an eye witness to the incident and therefore, his evidence cannot be accepted at its face value. Learned counsel further submits that this witness has deposed that investigating officer of the case namely PW-7 Tapeshwar Singh had written the written report but the investigating officer in his evidence has stated that written report is not in his hand writing. Learned counsel for the appellant therefore says that there is contradiction as to who had written the written report, informant PW-5 or the investigating officer PW-7, which only leads to doubting the truthfulness of the case and hence the prosecution case is doubtful. 14. Learned counsel for the appellant has then submitted that evidence of PW-4, who is said to be the eye witness, is also doubtful because in his cross-examination PW-4 has stated that he did not read what was written in the written report. Learned counsel, therefore, submits that if PW-4 had not read the written report then he is not in a position to know what is in the written report and hence the prosecution case is suspicious. 15. Learned counsel, therefore, submits that if PW-4 had not read the written report then he is not in a position to know what is in the written report and hence the prosecution case is suspicious. 15. Learned counsel for the appellant also pointed out that it is to be noted that it has come in the evidence of PW-4, who is apparently the eye witness that alleged assault took place at 4 p.m. and the place of occurrence is a crowded place and people came there from Tantnagar market to catch the boat to cross the Kharkai river. Learned counsel, therefore, says that definitely many people would have seen the occurrence taking place but prosecution has not examined any of such witnesses which raises doubt regarding the allegations on the appellant. 16. Learned counsel for the appellants also said that the conduct of PW-4 is also questionable because in cross-examination he states that he was at a distance of 300 yards away and accused ran away before he could reach the place of occurrence. Learned counsel further submitted that PW-4 has stated that he did not chase the accused and hence the conduct of PW-4 is most unnatural because he could have chased the accused particularly when it was also a crowded place and one need not be in any fear of chasing a criminal in broad daylight. Learned counsel has also argued that PW-4 did not immediately try to save his brother or take him to hospital but he goes away and thereafter he is informed by the boatman or PW-1 that his brother has died. PW-4 then again goes to the spot. Learned counsel, therefore, says that reliability of PW-4 creates much doubt. 17. On the aspect of conduct of the eyewitness PW-4, learned counsel for the appellant has relied on the judgment of Hon'ble Apex Court rendered in Shankarlal v. State of Rajasthan reported in (2004) 10 SCC 632 and Abdul Razak and others v. State of Karnataka reported in (2015) 6 SCC 282 . 18. Learned counsel for the appellant further submitted that investigation of the case was not properly done. Investigating officer had not visited the village of the accused to verify the relationship between the parties and whether there was any dispute existing between the parties or not. 18. Learned counsel for the appellant further submitted that investigation of the case was not properly done. Investigating officer had not visited the village of the accused to verify the relationship between the parties and whether there was any dispute existing between the parties or not. There was previous enmity between the parties which was needed to be verified and this has not been done by the investigating officer of the case PW-7. Further, learned counsel submits that it is stated by the investigating officer that when he had investigated the place of occurrence much blood was found at the place of occurrence and the investigating officer had collected the blood stained earth; however, it was not sent to the forensic department or centre. 19. Learned counsel for the appellant further submitted that it has also come on record that deceased was only assaulted by fists and slaps, therefore, taken with all the aforesaid aspects along with the assault only by fists and slaps, it is not possible that the deceased could have sustained injuries that have been indicated in the injury or medical report. Learned counsel, therefore, says that there is much contradiction in the allegations of assault by fists and slaps and the medical injuries raises doubt regarding the allegations and therefore, Section 304 clause 2 of IPC would also not be sustained because fists and slaps would not be resulting in the death of the deceased. Arguments of the learned Counsel for the State: 20. Learned counsel for the State has first and foremost argued that there is no delay in the lodging of the FIR. The incident is of 21.10.1999 and the FIR was lodged immediately on the next day i.e. on 22.10.1999. Therefore, it cannot said that there is any delay in lodging of the FIR. 21. Counsel for the State then argued that PW-4 or Pandav Sen Giri is an eye-witness to the incident and he has clearly deposed that his brother was murdered on 21.10.1999. He has in fact substantially supported the prosecution case that when he was returning home along with his deceased from Tantnager market he was behind the deceased. When they had reached near Kharkai river then the appellant had arrived there, caught hold of his brother Pratap Chandra Giri and assaulted him with fists and kicks. He has in fact substantially supported the prosecution case that when he was returning home along with his deceased from Tantnager market he was behind the deceased. When they had reached near Kharkai river then the appellant had arrived there, caught hold of his brother Pratap Chandra Giri and assaulted him with fists and kicks. Morevoer, he had gone to save him and then the accused had fled away. Therefore, PW-4 is an eye-witness and had seen the occurrence. Counsel for the State has also said that the evidence of PW-4 regarding assault made by the appellant is also corroborated by PW-5 and PW-6. Counsel also submits that the medical report fully supports the assault made by the appellant on the deceased. According to the doctor PW-8 the head was smashed and there was fracture of ribs on both sides and the brain matter had been smeared of and the heart and lungs were also punctured. Hence given the nature of the injuries, the appellant has been leniently punished in fact he should have been convicted of a more serious offence and punished accordingly. 22. Learned counsel further submits that PW-7 Investigating Officer of the case had visited the place of occurrence and prepared the seizure list of the blood stained earth. Therefore, the place of occurrence is fully proved by the evidence of PW-7. Returning back to the evidence of the doctor, learned counsel for the State submitted that the doctor in his opinion has stated that the weapon of assault used was hard and blunt may be caused by fists and slaps. Investigating office had also found small pit under the head of the deceased and also breaking of ribs as found by the doctor is very much possible if one is assaulted forcibly with fists and blows. Therefore, the evidences of the eye-witness PW-4 along with the evidence of the doctor PW-8 and the Investigating Officer PW-7 only goes to prove the case against the appellant. 23. Lastly learned counsel for the State submitted that PW-4, PW-5 and PW-6 all have supported the prosecution case and the medical report reflecting the injuries is consistent with the evidence of eye witness PW-4. Hence, impugned judgment of conviction and order of sentence passed by the learned court below be sustained and upheld by this court. FINDINGS 24. 23. Lastly learned counsel for the State submitted that PW-4, PW-5 and PW-6 all have supported the prosecution case and the medical report reflecting the injuries is consistent with the evidence of eye witness PW-4. Hence, impugned judgment of conviction and order of sentence passed by the learned court below be sustained and upheld by this court. FINDINGS 24. Having heard both counsels, having gone through the records of the case, the evidences and in the facts and circumstances, it is seen that this is a case of the sole eyewitness PW-4 or Pandav Sen Giri who is the brother of the deceased. Apparently he is the one who had gone along with the deceased Pratap Chandra Giri to the Tantnagar market on 21.10.1999 and essentially it is on his evidence that the case is sought to be built up. The informant PW-5 Sahdao Giri is himself not an eye witness to the alleged incident but he is the informant of the case. PW-5 has in his evidence stated that the information regarding the incident was conveyed to him by his brother PW-4 or Pandev Sen Giri. From the evidence of PW-4, it is revealed that he was behind the deceased and that he had witnessed the assault from a distance of 300 yards. It is unlikely that from that distance he could have made out precisely as to who committed the assault. However, PW-4 has on the other hand said that when he reached the place of occurrence or rather when he was just two yards away the accused fled away. PW-4 has himself stated in his cross examination that he did not chase the accused and neither did he raise any alarm though it has come in the evidence that place of occurrence is a crowded area because it is from the place of occurrence and its vicinity that people use for crossing over the river on to another side. There is also some doubts raised regarding the written report which is the basis of the FIR. There is inconsistency or contradictory versions are given regarding as to who had written the written report that is the informant PW-5 or Investigating officer PW-7. PW-5 has deposed that investigating officer had written the written report however investigating officer PW-7 says written report is not in his hand writing. There is inconsistency or contradictory versions are given regarding as to who had written the written report that is the informant PW-5 or Investigating officer PW-7. PW-5 has deposed that investigating officer had written the written report however investigating officer PW-7 says written report is not in his hand writing. These conflicting statements regarding the author of the written report also creates some doubt. 25. Another aspect, raising some doubt is that PW-4 has claimed that he was eye witness to the assault on the deceased but in his cross-examination PW-4 stated that PW-1 Pravakar Girvar or the boatman had come to his house on the day of occurrence and informed that his brother had died and then he had gone to the place of occurrence along with his brother (PW-5) and nephew (PW-6). This behavior of PW-4 is rather odd, because initially it is him who has seen the assault, then why does he then only go to see his deceased brother when he is informed by the boatman that his brother has died. PW-4 could have gathered PW-5 and PW-6 even earlier to check on his brother, rather than to wait about news of his brother's death. In case of Abdul Razak (Supra) relied on by the learned counsel for the appellant Apex court noted that the conduct of prosecution witness did not inspire confidence as the witness therein did nothing to help the unfortunate soul. In the case in hand also PW-4 is not a reliable witness as he did not chase the accused or tried to save his deceased brother though he was 300 yards away, as stated by PW-4 in his cross-examination, when deceased was assaulted by the accused. He has also stated that the accused fled away when he was at a distance of just two yards. 26. Therefore, based on all the aforesaid reasons, extending the benefit of doubt to the appellant Laxmidhar Das, the Judgment of conviction and order of sentence dated 22.05.2003 and 23.05.2003 respectively, passed by the learned Additional Sessions Judge, Fast Track Court -I, Chaibasa in Sessions Trial Case No. 78 of 2000 is set-aside. Appellant Laxmidhar Das is acquitted of the charge and he is discharged of his liabilities of bail-bonds. 27. This criminal appeal is allowed.