JUDGMENT : R. Mukhopadhyay, J. Heard Mr. Rajeeva Sharma, learned Senior Counsel for the appellants and Mr. P.K. Appu, learned APP. 2. This appeal is directed against the judgment and order of conviction and sentence dated 10.05.2012 (sentence passed on 14.05.2012) passed by Shri Shrikant Roy, learned Additional Sessions Judge-1, Pakur in Sessions Case No. 03 of 2008, whereby and whereunder the appellants have been convicted for the offence punishable under Section 302 /149 I.P.C and have been sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 5000/- and in case of non-deposit of the fine amount, they were directed to undergo simple imprisonment for 1 year. 3. The prosecution case arises out of the fardbeyan of Dinesh Marandi recorded on 25.04.2007, in which it has been stated that in the morning, the informant had gone along with his father to Kanhaipur. It has been alleged that at 8:00 P.M., when they were returning near a pond at village Murgadanga, they were surrounded by Hopna Marandi, Mota Marandi, Aaresh Marandi, Chunda Marandi, Sripati Marandi, Ishwar Marandi, Chhoto Murmu, Stephen Marandi and Daniel Marandi and they started assaulting the father of the informant. The informant had fled away from another route and informed the villagers about the incident. It has been alleged that after some time the accused persons had brought the father of the informant to Kichadhab which is in the periphery of the village of the informant and assaulted him there also. The informant had raised an alarm, but none of the villagers had come to the rescue of the father of the informant due to fear. After committing the assault, the accused persons fled away towards Murgadanga. When the accused persons had left, the informant along with some villagers had come to the place where the father of the informant was lying unconscious with several injuries on his person. The informant and others had taken away his father to the hospital. The reason for the occurrence is a previous land dispute. Based on the aforesaid allegations, Maheshpur P.S. Case No. 71/2007 was instituted under Sections 147 , 148, 149, 341, 323, 324, 325, 326, 307 and 379 IPC. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as Sessions Case No. 03/2008. Based on the aforesaid allegations, Maheshpur P.S. Case No. 71/2007 was instituted under Sections 147 , 148, 149, 341, 323, 324, 325, 326, 307 and 379 IPC. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as Sessions Case No. 03/2008. The charge was framed against the accused under Sections 149 , 307, 302 and 379 IPC which was read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as 11 witnesses in support of its case. 5. P.W.1 Thakrain Murmu has stated that at 8.00 a.m. she had gone near the school to graze cattle. Suban was coming with Dinesh from Kanhaipur. When they reached near the pond, Dilip, Gaina and nine other persons had surrounded Suban and started assaulting him with the various weapons which were in their possession. On seeing the assault upon Suban, Dinesh fled away from a different route. She has stated that Hopna had a spear, Aresh and Dinesh and Stey had a bow and arrow; Mota, Chunda, Gaina and Ishwar had Lathi, Sripati had a knife, Chhotu had a sword in their possession. The accused person while committing assault, had taken away Suban to Kichadhab. She, Hopanmai and Kaku Soren had tried to save Suban but the accused persons did not relent and continued committing assault upon Suban. After committing the assault the accused fled away after which he and the others had taken Suban Marandi to Maheshpur Hospital. From Maheshpur Hospital Suban was taken to Rampurhat Hospital where he died. In cross-examination, she has deposed that Gaina Marandi is her brother-in-law. She does not know as to whether there was a land dispute between her husband and Gaina Marandi. When her husband was caught hold of by the accused persons, she had raised an alarm but none came for assistance from Maheshpur village. When she had gone near her husband she had found him lying in a pool of blood and there was blood on the earth as well. 6. When her husband was caught hold of by the accused persons, she had raised an alarm but none came for assistance from Maheshpur village. When she had gone near her husband she had found him lying in a pool of blood and there was blood on the earth as well. 6. P.W.2 Hopanmai Marandi has stated that she was going to throw garbage in the field when she heard her father screaming and when she went near the pond, she saw the accused persons committing assault upon her father with various weapons. She tried to save her father but the accused persons did not listen and instead dragged him towards Kichadhab where he was once again assaulted after which they fled away towards Murgadanga. Her mother Kaku was with her and some villagers were also standing at a distance. Her father, who was unconscious, was taken to Maheshpur Hospital and thereafter to Rampurhat Hospital where in course of treatment he died. In cross examination she has deposed that Gaina is her uncle. There was no dispute between her father and Gaina. Her father was dragged from the pond to Kichadhab. 7. P.W.3 Kaku Soren has stated that at 8.00 a.m. she was picking Mahua flowers near the pond and at that point of time Suban Marandiand Dinesh Marandi were coming on bicycles from Kanhaipur. Suban was surrounded by the accused persons who started committing assault upon him. Suban was dragged towards Kichadhab. She had followed them and had seen the occurrence from some distance. There were several other persons who had witnessed theincident. After committing assault the accused persons fled away towards Murgadanga. Suban was lying unconscious with injuries on his person. Suban was taken to Maheshpur P.S. and thereafter to a Government Hospital. Suban ultimately died at Rampurhat hospital. In cross-examination she has deposed that Gaina had filed a case of theft of paddy against Suban in which he had to go to jail. None of the villagers from Murgadanga had come to the place of occurrence. There was blood near the pond. 8. P.W.4 Nasir Marandi was in his house when his brother Dinesh Marandi came running and disclosed that his father is being assaulted near the pond.At this information he rushed towards the school where he saw the accused persons committing indiscriminate assault upon his father. There was blood near the pond. 8. P.W.4 Nasir Marandi was in his house when his brother Dinesh Marandi came running and disclosed that his father is being assaulted near the pond.At this information he rushed towards the school where he saw the accused persons committing indiscriminate assault upon his father. His father was taken by the accused persons to Kichadhabwhere also he was assaulted.There were 20-25 villagers who had seen the incident with him. After committing the assault the accused persons fled away towards Murgadanga. When he reached near his father, he saw him unconscious with his hands and legs broken. He had taken his father to Maheshpur hospital, thereafter to Pakur hospital and finally to Rampurhat hospital where he died in course of treatment. In cross-examination he has deposed that his statement was recorded by the Police in which he had taken the name of Ishwar Hembram and Dilip Murmu amongst the other accused persons. When he had reached near his father, he had seen blood coming out from his head and legs. There was blood on the ground. 9. P.W.5 Rajesh Marandi has stated that he was in his house when he heard a commotion that Suban Marandi is being assaulted. On hearing such alarm, he and the other villagers had gone towards the pond at Murgadanga where he saw the other accused persons committing assault upon Suban Marandi and were dragging him towards Kichadhab. Suban Marandi was assaulted in Kichadhab after which the accused persons left for Murgadanga. He and the other villagers could not save Suban Marandi since the accused persons had weapons in their possession. After the accused persons had fled away he and the other villagers had gone to the place where Suban Marandi was lying unconscious and saw fracture of his hands and legs and several injuries on his person. Suban Marandi was taken to the hospital where he died. In cross-examination he has deposed that his statement was recorded by the Police where he had taken the name of Dilip Murmu and Gaina Marandi.He has further deposed that Suban was dragged towards Kichadhab. 10. P.W.6 Subodh Tudu was in his house when on hearing a commotion he had gone near the pond where he found Suban Marandi being assaulted by the accused persons. Suban was assaulted and taken towards Kichadhab where also he was subjected to assault. 10. P.W.6 Subodh Tudu was in his house when on hearing a commotion he had gone near the pond where he found Suban Marandi being assaulted by the accused persons. Suban was assaulted and taken towards Kichadhab where also he was subjected to assault. There were several persons of the village who had witnessed the occurrence. After committing the assault the accused persons had fled away towards Murgadanga village. Suban was found unconscious with his hands and legs broken. He was taken to Maheshpur hospital and thereafter to Rampurhat hospital where he died. In cross-examination he has deposed that his statement was recorded by the Police. He had taken the name of Dilip Murmu and Gaina Marandi as accused. 11. P.W.7 Dinesh Marandi is the informant who has stated that on 25th April 2007 at 8.00 a.m. he was returning to his house from Kanhaipur along with his father Suban Marandi and when they reached near the pond at Murgadanga village, the accused persons had surrounded his father and started assaulting him with various weapons. When he saw his father being assaulted, he fled towards his village on his bicycle through a different route. He had disclosed the incident to his family members and to the villagers and when they went to the place of occurrence they saw his father being dragged towards Kichadhab where he was once again assaulted. When the accused persons after committing the assault fled away he went near his father whom he found to be in an unconscious state. Both his hands and legs were found broken and there were injuries on his person. His father was taken on a cot to the hospital from where he was referred to Sadar Hospital, Pakur and from there to Sadar hospital, Rampurhat where his father died during treatment. His Fardbayan was recorded in Maheshpur hospital. He has proved his signature in the Fardbayan which has been marked as Exhibit-1. The bag of his father was taken away by the accused persons. In cross-examination he has deposed that in his statement before Police he had taken the name of Gaina Marandi and Dilip Murmu. In the land related case of Jamabandi No. 20, judgment has already been passed by the court. He has deposed that on hearing the cry of alarm nobody had come from Murgadanga village. In cross-examination he has deposed that in his statement before Police he had taken the name of Gaina Marandi and Dilip Murmu. In the land related case of Jamabandi No. 20, judgment has already been passed by the court. He has deposed that on hearing the cry of alarm nobody had come from Murgadanga village. The bag, which was taken away by the accused persons, had land related documents in it. 12. P.W.8 Sobe Tudu has stated that he was in his house when on hearing a commotion he had gone to Murgadanga along with other villagers where he saw the accused persons taking away Suban Marandi towards Kichadhab. The accused persons were assaulting him with various weapons.The accused persons had assaulted and made unconscious Subban Marandi at Kichadhab and thereafter fled away towards Murgadanga. After the accused persons fled away he went near Suban whom he found unconscious. He had seen several injuries on the person of Suban and both his hands and legs were broken. Suban was later on brought to Maheshpur hospital. In cross-examination he has deposed that there was a pool of blood at the place where Suban was lying unconscious. He had seen injuries with knife and spear. His statement was recorded by the Police in which he had taken the name of Gaina and Dilip Murmu. 13. P.W. 9 Janik Lal Hembram has stated that the incident is of one year eight months back. It was 8.00 a.m. and he was in his house. On hearing a commotion he had come to know about the occurrence. He had gone to the bank of the river where Suban was being assaulted. He had seen Suban being dragged towards Kichadhab where he was once again assaulted by the accused persons. Along with him some villagers were also present. The accused persons after committing the assault had fled away. He had found Suban lying in an unconscious state. Both his legs and hands were found broken. He was taken to Maheshpur hospital on a cot and thereafter to Rampurhat hospital where he died. In cross-examination he has deposed that his statement was recorded by the Police in which he had taken the name of Gaina and Dilip. There was a pool of blood at the place where Suban was lying unconscious. He was taken to Maheshpur hospital on a cot and thereafter to Rampurhat hospital where he died. In cross-examination he has deposed that his statement was recorded by the Police in which he had taken the name of Gaina and Dilip. There was a pool of blood at the place where Suban was lying unconscious. He has not stated before the Police that at the time of the incident he had gone to the house of his nephew Tunkari Hembram. 14. P.W.10 Dr. Hiranmay Ghosh was posted as a Medical Officer in Sub-Divisional Hospital, Rampurhat and on 26.04.2007 he had conducted autopsy on the dead body of Suban Marandi and had found the following:- (i) Lacerated wound of left eye involving all structures of eye causing disfiguration of eyeball with punctured left orbit cavity and pace of skull left margin. (ii) Fracture proximal phalanx of middle finger of right hand. (iii) 2” x 1½” x 1” lacerated injury over right elbow. (iv) Multiple abrasion over left shoulder area. (v) On opening skull- 2” x 2” circular hematoma on left fronto temporal area of brain found. Spinal cord was intact. (vi) Heart- left chamber empty, right chamber contained blood and blood clots. Valves of ribs and cartilage intact. (vii) Right and left lungs were pale. Stomach empty. Large intestine contained faeces and gases. Liver, Spleen and Kidney were pale. Bladder was empty. External and internal genitals were normal. The cause of death was opined to be due to shock and haemorrhage from the abovementioned injuries. He has proved the post-mortem report which has been marked as Exhibit-2. In cross-examination he has deposed that there was no fracture in hands and legs except in fingers. There was no punctured injury on any part of the body. 15. P.W.11 Shri Paswan was posted as a Sub-Inspector of Police at Maheshpur P.S. and on 25.04.2007 he had recorded the Fardbayan of Dinesh Marandi at Primary Health Centre, Maheshpur.He has proved the Fardbayan which has been marked as Exhibit-3. He had taken over the investigation of the case and had inspected the place of occurrence. He had recorded the restatement of the informant. The place of occurrence is a dry pond in the under-constructed road between Murgadanga and Dolai.He had recorded the statements of Subodh Tudu, Rajesh Marandi, Janiklal Hembram, SobeTudu, Kaku Soren, Hopna Marandi, Thakrain Murmu and Nasir Marandi. He had recorded the restatement of the informant. The place of occurrence is a dry pond in the under-constructed road between Murgadanga and Dolai.He had recorded the statements of Subodh Tudu, Rajesh Marandi, Janiklal Hembram, SobeTudu, Kaku Soren, Hopna Marandi, Thakrain Murmu and Nasir Marandi. He has stated that on 26.04.2007 Dinesh Marandi had come to the Police Station and had informed that Suban Marandi has died in Rampurhat hospital where his autopsy was also done. He had received the post-mortem report and the inquest report. The injury report of Suban Marandi has been proved and marked as Exhibit-4. He had submitted charge sheet keeping investigation pending against Dilip Murmu and Gaina Marandi. Later on he had submitted supplementary charge sheet against Gaina Marandi and Dilip Murmu. In cross-examination he has deposed that he had not prepared the sketch map of the place of occurrence. There were no signs of dragging at the place of occurrence. He did not find any blood at both the places of occurrence. The informant in his Fardbayan and his restatement had not taken the name of Gaina Marandi and Dilip Murmu. The witness Subodh Tudu, Rajesh Marandi, Janiklal Hembram and Sobe Tudu had not taken the name of Gaina Marandi and Dilip Murmu. The witness Nasir Marandi had taken the name of Dilip Marandi and not Dilip Murmu. He had not recovered any weapon or documents from the house of the accused. 16. The statements of the accused were recorded under Section 313 Cr.P.C in which they havedenied their complicity in committing the murder of Suban Marandi. 17. It has been submitted by Mr. Rajeeva Sharma, learned senior counsel for the appellants that the authenticity of the Fardbayan dated 25thApril 2007 recorded at Maheshpur Primary Health Centre is rendered suspicious and manipulated in view of the fact that the inquest report and the post-mortem of the deceased was done on 26thApril 2007 at Rampurhat Hospital vide U.D.Case No. 114/07 without the knowledge of the Investigating Officer. The place of occurrence has not been proved as no blood was found in the said place by P.W.11.It has been submitted that the post-mortem report does not support the allegation of assault committed with sharp cut weapons. The prosecution has failed to bring on record any evidence of the treatment of the deceased at Maheshpur Primary Health Centre, Sadar Hospital, Pakur and Sub-Divisional Hospital, Rampurhat. 18. Mr. The prosecution has failed to bring on record any evidence of the treatment of the deceased at Maheshpur Primary Health Centre, Sadar Hospital, Pakur and Sub-Divisional Hospital, Rampurhat. 18. Mr. P. K. Appu, learned A.P.P has submitted that there are several eyewitnesses to the occurrence who have stated about seeing the appellants being variously armed surrounding the father of the informant and committing indiscriminate assault resulting in his death. The autopsy report also corroborates the manner of assault attributed to the appellants. 19. We have heard the learned counsel for the respective parties and have also perused the trial court record. 20. The incident seems to be of an assault committed upon the father of the informant by the accused persons including the appellants and several witnesses have claimed to have seen the incident. The deceased was initially taken to Primary Health Centre, Maheshpur and thereafter, on being referred to Sadar Hospital, Pakur and finally to Sadar Hospital, Rampurhat. Before considering the submission of the learned senior counsel for the appellants regarding the FIR being antedated and a suspicious piece of document, we shall consider the evidence of the witnesses. The fardbeyan reveals that despite an alarm being raised by the informant (P.W.7), none of the villagers had arrived at the scene to save Suban Marandi from the murderous assault committed upon him by the accused persons. The villagers had subsequently arrived on seeing the accused persons fleeing away. P.W.7, however, in his evidence has developed such version by stating that his family members as well as the villagers had rushed to the said spot. The arrival of the villagers is a common refrain from all the witnesses. Surprisingly, even though the villagers and the family members far outnumbered the accused persons, but none dared to prevent the assault or take efforts to save Suban Marandi. Instead, all watched the assault and only approached the unconscious Suban Marandi after the accused persons had left the place of occurrence. Such evidence appears to be fragile in nature for the reasons mentioned hereinabove. The other consistent feature of the case is that Suban Marandi was dragged from the first place of occurrence to Kichadhab where he was once again subjected to assault. The weapons used by the accused persons were lathis, bows and arrows, spear, sword and knife. Such evidence appears to be fragile in nature for the reasons mentioned hereinabove. The other consistent feature of the case is that Suban Marandi was dragged from the first place of occurrence to Kichadhab where he was once again subjected to assault. The weapons used by the accused persons were lathis, bows and arrows, spear, sword and knife. The deceased had suffered four injuries on his person which is quite a contrast to the allegation of multiple persons committing a concerted assault with dangerous weapons as described in the evidence of the witnesses. Injury No. (i) proved to be fatal which was a piercing wound on the left eye, whereas the rest of the injuries were not sufficient to cause death in ordinary course of nature. Almost all the witnesses have stated about the hands and legs of the deceased having been broken, but no such injuries were found which furthermore, nullifies the assertion made by them. The evidence of the Investigating Officer (P.W.11) is an interesting read in the backdrop of the evidence of the other witnesses as he had neither found any signs of dragging from the first place of occurrence to the second place of occurrence, nor had he found any blood along the way or at the different places where the assault had taken place. These contradictions would be fatal to the prosecution case when we also take into consideration that there was a long-standing land dispute between both the parties. Moreover, it appears that P.W.7 neither in his Fardbayan nor in his restatement had taken the name of the appellants. As per P.W.11, several of the witnesses have not taken the name of the appellants in their statements before the Police. 21. It is said that Suban Marandi was taken to Primary Health Centre, Maheshpur and thereafter on being referred to Sadar Hospital, Pakur and finally to Sadar Hospital, Rampurhat. None of the references have been exhibited by the prosecution. On account of the death of Suban Marandi at Sadar, Hospital Rampurhat, U.D. Case No. 114/07 was registered which finds place in the post-mortem report and the inquest report. The statement of the informant recorded in the inquest report reveals that the informant had straightaway brought his father to Sub- Divisional Hospital Rampurhat. On account of the death of Suban Marandi at Sadar, Hospital Rampurhat, U.D. Case No. 114/07 was registered which finds place in the post-mortem report and the inquest report. The statement of the informant recorded in the inquest report reveals that the informant had straightaway brought his father to Sub- Divisional Hospital Rampurhat. P.W.11 has stated that the information about the death and the conducting of the autopsy at Sub-Divisional Hospital, Rampurhat was given to him by the informant. The entire gamut of circumstances would indicate that the fardbeyan of the informant recorded at Primary Health Centre, Maheshpur comes within the realm of suspicion and cannot be relied upon for the purposes of conviction. 22. In view of the aforesaid discussion, we come to the conclusion that the learned trial court has not appreciated the evidence on record in its proper perspective and consequently we set aside the judgment and order of conviction and sentence dated 10.05.2012 (sentence passed on 14.05.2012) passed by Shri Shrikant Roy, learned Additional Sessions Judge-1, Pakur in Sessions Case No. 03 of2008. 23. This appeal is allowed. 24. Since the appellants are in custody, they are directed to be released on bail immediately and forthwith, if not wanted in any other case. 25. Pending interlocutory application(s), if any, stand(s) closed.