Kalidas Mukherjee, J.@mdashThis appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, Purulia in Sessions Trial No. 9 of 1995 arising out of Sessions Case No. 42 of 1989 sentencing the Appellant Dhiren Garai to suffer R.I. for life and to pay a fine of Rs. 5,000/- in default to suffer R.I. for two years u/s 302/34, Indian Penal Code and also to suffer R.I. for three years and to pay a fine of Rs. 3,000/- in default to suffer R.I. for one year u/s 326/34, Indian Penal Code, with the direction that both the sentences will run concurrently. The Appellant Sitaram Garai has been sentenced to suffer R.I for life and also to pay a fine of Rs. 5,000/- in default to suffer R.I. for two years u/s 302/34, Indian Penal Code.
2. The prosecution case, in short, is that on 12.2.1984 at 12.30 P.M. the statement of one Mihir Chandra Garai was recorded at village Bamro which was treated as F.I.R. It has been alleged therein that on 12.2.1984 at 6.00 A.M. the informant and his younger brother Pagal Garai were making arrangements for bringing water from Paugra Dam at the western side of the village to the vegetable garden belonging to them. Bharat Garai''s son Putka Garai aged about 9/10 years was standing in front of the house of Guhiram and he was trying to divert the flow of water. At that time it was about 8.00 A.M. After witnessing this, the younger brother of the informant scolded Putka who he ran to his room. Thereafter Bharat''s wife came out and abused the informant and his men. Thereafter Satrughna and his elder brother Bharat taking sticks came out of their room. Their neighbours Guhiram and his two sons Sitaram and Prafulla took sticks and ''Farsa'' and chased the informant and his younger brother. Being frightened the informant and his brother came near their house and on hearing their shouts informant''s uncle Jiten Garai, aunt Sarubala Garai came out of their house. The informant went inside the room. Pagal Garai was standing with the aunt. At that time Durjodhan Garai and his two sons Dhiren Garai and Sakti Garai and Durjadhan''s elder son-in-law Haripada Garai being armed with sticks, a double barrel gun, ''farsa'' arrows, ''karh'' came there. Sakti Garai snatched the gun from the hand of Dhiren and fired one round of bullet at the place where Jiten, Sarubala and Pagal were standing. Jiten at once fell down on the ground. Sarubala and Pagal also fell down there. After witnessing this, the informant rushed to that place and saw that there were bullet marks on the chest, hand, stomach and face of Jiten. Jiten died there immediately. Pagal sustained bullet injury in the neck, face and hand. Sarubala had sustained bullet injury in the abdomen, but she was somehow able to talk. At that time the accused persons came towards the informant with gun, stick and other weapons. The informant closed the door and brought the injured Pagal and kept him in the room. Jiten and Sarubala were lying near the door of the room. The informant sent his mother Sushila Garai to their friend Dhananjay Mahata for delivering a message that Jiten, Sarubala and Pagal were shot at about 8.00 A.M. Thereafter, the accused Sitaram with a ''farsa'' and Sakti Garai with a double barrel gun went to the mother of the informant. After looking at them, the mother of informant folded her hands. At that time Shakti shot at Sushila with the help of the gun and the informant''s mother fell on the ground.
3. After 10/15 minutes Shakti Garai again came with a gun and Sitaram with a ''farsa'' and Sakti again fired one round on Sushila. This incident was witnessed from some distance by Tarani Mahato, Jhogru, Butan Mahato and many other villagers of Lanka. They were standing there. The informant went there and saw that his mother was lying dead on the field with bleeding injury at the side of the right ear. Sushila was lying on the paddy field belonging to Biru Porai of Bamro. When the informant was coming back home, he noticed Dhiren with a gun in his hand along with others who were coming out of their room. The informant heard about the incident from his brother Pagal.
4. It was then about 9 A.M. After shooting as aforesaid the accused persons went to the village. The informant could learn from Sasthi Garai that after the attack upon Jiten and Sarubala the accused persons went to the house of Sasthi Garai and fired one round of bullet and attacked them with axe. Sasthi Garai and other people bolted their door from inside.
5. It has been stated in the F.I.R. that during the month of August of the previous year, the two sons of Durjadhan and his wife and a woman were murdered and the informant and others were all accused. Out of that grudge, on the issue of a trifling matter regarding taking of water, the accused persons murdered Jiten and Sushila by shooting and causing injury to Pagal and Sarubala Garai.
6. Upon receipt of written complaint the Purulia (M) P.S. case No. 9 dated 12.2.1984 was started.
7. After completion of investigation the charge sheet was submitted. The learned Judge framed charges under Sections 302/149, 326/149 and 148 of the Indian Penal Code against seven accused persons. The accused persons pleaded not guilty and claimed to be tried.
8. The learned Trial Judge upon consideration of the materials on record passed the impugned judgment of conviction and sentence holding that there was clear evidence that Jiten Garai and Sushila had expired due to gunshot injury. The learned Judge further held that Pagal and Sarubala Garai sustained gunshot injuries. The learned Judge held that Sushila had been shot by the same gun which was handed over by Dhiren Garai to Shakti and that the oral evidence of P. Ws was corroborated by the medical evidence. It was held by the learned Judge that it was the common intention of Dhiren Garai to cause the death of Jiten Garai. The learned Judge held that the incident occurred in a broad daylight and there was positive evidence that the gun was fired to cause the death of Jiten and Sushila. The learned Judge held that examination of relative witnesses was not fatal to the prosecution in view consideration of the heinous offence caused by the accused persons.
9. Mr. Mitra being led by Mr. Basu appearing on behalf of the Appellants submits that in the F.I.R. it has been alleged that in the house of Sasthi there was an incident of firing and the accused persons came armed with axe. It is contended that none of the P. Ws stated about the said alleged incident in the house of Sasthi. It is submitted that Sasthi has not been examined.
10. It is submitted that Dharanidhar (P.W. 6) did not say anything about the alleged attack with the help of axe and in the F.I.R. there is no mention that Dhiren handed over the gun to Shakti and passed order to kill the informant and his men. It is contended that as the charge u/s 148 I.P.C. failed, it became the individual acts of the accused persons and so far as Section 34 of the Indian Penal Code is concerned, there is no evidence to show that Sitaram who allegedly took a "farsa" in his hand, used the said weapon at any point of time. It is contended that there was no participation of Sitaram and, as such, the charge against Sitaram u/s 302/34 of the Indian Penal code would also fail. It is submitted that the inquest was held at about 2.30 P.M. and the F.I.R. was registered at 2.45 p.m. It is submitted that till the holding of inquest over the dead body of Jiten and Sarubala there was no disclosure of the name of any of the assailants.
11. It is submitted that there are contradictions on material points with the earlier statements recorded u/s 161 Code of Criminal Procedure and, as such, the evidence of the P. Ws made for the first time at the time of trial cannot be believed.
12. It is submitted that it would appear from the evidence of P.W. 7 ad P.W. 9 that Dhiren Garai gave the gun to Shakti and passed order to kill the informant and his men, but, these P. Ws did not make such statement to the I.O. u/s 161 Code of Criminal Procedure
13. It is submitted that Jiten had multiple fire arm injuries, but, from the evidence of the P. Ws it would appear that only one shot was allegedly fired by the accused persons. As regards the injury on the person of Sushila it is submitted that the autopsy surgeon found only one bullet injury on the person of Sushila, but, from the evidence it would appear that Shakti fired twice at Sushila. It is contended that the oral evidence does not find corroboration from the medical evidence.
14. It is contended that only one gun was seized which was allegedly used for causing death of Jiten and Sushila. It is submitted that the gun was seized and sent to the expert, but, the report (Exhibit - 11) would show that it relates to examination of pellets and not bullets. It is submitted that the difference between pellet and bullet assumes much importance under such facts and circumstances of the case.
15. It is submitted that the F.I.R. was antedated and there were serious discrepancies in the evidence of the P. Ws and the medical evidence did not support the ocular version of the incident made by the P. Ws.
16. Mr. Basu has referred to the decisions reported in (2009) 1 SCC 212 [Ramesh Baburao Devaskar and Ors. v. State of Maharashtra 2011(1) AICLR 321 [Mobrak Sk. @ Mobarak Hossain and Ors. v. The State of West Bengal]; 2001(4) AICLR 812 [Thanedar Singh v. State of Madhya Pradesh];
17. Mr. Mallick appearing for the State submits that there is no question of the F.I.R. being hit u/s 162 Cr.P.C., in as much as, P.W. 6 has stated that he went to the police station to inform the local police. Mr. Mallick contends that in view of the decision reported in (2010) 3 SCC 1301 (Sambhu Das v. State of Assam) wherein it has been laid down that the cryptic information over telephone regarding commission of the alleged murder might have been given to the P.S. prior to the lodging of the F.I.R. on the basis of which investigation can start and inquest can be made, but, the earlier information would not, ipso facto, demolish the prosecution case in any way. Mr. Mallick contends that P.W. 14 has referred to the G.D. entry No. 274 which was earlier lodged, but, the prosecution could not produce that G.D. at the time of trial. Mr. Mallick contends that it is entirely the discretion of the prosecution as to what evidence is to be adduced to bring home the charge against the accused persons. It is the contention of Mr. Mallick that the defence could have called for that G.D. from the P.S. in order to show that it contained definite information regarding the commission of murder including the names of the assailants. Mr. Mallick submits that in absence of such evidence on the part of the defence, it cannot be said that F.I.R. is the product of embellishment and fabrication.
18. Mr. Mallick contends that there is evidence on record about the enmity between the parties, but, according to the established principles of law enmity cuts both ways.
19. Mr. Mallick submits that from the evidence of the P. Ws it would appear that there was pre-arranged plan on the part of the accused persons to commit murder and they were all armed with deadly weapons. In this connection Mr. Mallick has referred to the decision reported in (2010) 3 SCC 893 [Virendra Singh v. State of M.P.]. It is contended that under such circumstances, the provision contained in Section 34, Indian Penal Code is squarely attracted.
20. Mr. Mallick relies on the evidence of P.W. 1, P.W. 2, P.W. 3, P.W. 6 and P.W. 9 and submits that in the second phase of the incident Sitaram and shakti both were present being armed with deadly weapons.
21. It is contended that the discrepancy between the ocular evidence and the medical evidence regarding the injuries on the person of the deceased would not, ipso facto, cast any shadow of doubt, in as much as, there is no denial in the cross-examination of the P. Ws to that effect. Mr. Mallick has put much stress on the evidence of P.W. 7 and P.W. 9, that is, the injured persons. It is submitted that no explanation was given by the accused persons in their statements recorded u/s 313 Code of Criminal Procedure
22. Mr. Souvik Mitra, learned Counsel for the Appellants, while giving reply contends that P.W. 6 has categorically stated that on seeing the assailants he went to the local police station and he narrated the entire incident. Mr. Mitra contends that in view of such evidence of P.W. 6 and the nonproduction of the G.D. No. 274 by the prosecution, the lodging of the F.I.R. after the holding of the inquest strikes at the root of the prosecution case.
23. Mr. Mitra contends that the decision cited by Mr. Mallick would not apply in the facts of the instant case, in as much as, there is no evidence of prearranged plan. Mr. Mitra contends that the other accused persons who faced the trial have already been acquitted by the learned Trial Judge and the two accused persons who have been convicted cannot be said to be the members of the unlawful assembly. It is contended that under such circumstance, the charge u/s 148 of the Indian Penal Code also fails and Dhirendra ought not to have been convicted u/s 302/34, Indian Penal Code. As regards the applicability of Section 34, Indian Penal Code Mr. Mitra submits that there was no overt act on the part of accused Sitaram and, as such, Section 34 is not applicable in respect of accused Sitaram.
24. At the very outset it appears that the statement of Mihir (P.W. 1) was recorded at village Bamro u/s 154 Cr. P. C. It was recorded on 12.2.1984 at 12.30 P.M. The statement so recorded was sent to the P.S. and the F.I.R. was registered at 2.45 p.m. There were the names of nine accused persons in the F.I.R. including the present Appellants. The inquest of Sushila Garai was held at 1.55 P.M. and Tarani Sen Mahato (P.W. 2) signed the inquest report as a witness. The inquest of Jiten Garai was held at 2.30 P.M. In the inquest report of Jiten Garai, Mihir (P.W. 1) signed as a witness. It is significant to note that none of the witnesses P.W. 1 and P.W. 2 disclosed the names of the assailants in the inquest report, although, the statement of Mihir (P.W. 1) was recorded at village Bamro at 12.30 P.M. In this connection Mr. Mitra has referred to the decision reported in 1975 SC 1962 [Balaka singh and Ors. v. State of Punjab] (Supra). In paragraph 7 the Hon''ble Apex Court observed as follows:
Another finding which demolishes the entire edifice and fabric of the prosecution case is that the F.I.R. itself was not written at 10 P.M. as alleged by the informant Banta Singh but it was written out after the inquest report was prepared by the ASI....
25. It remains unexplained as to why the names of the assailants were not stated in the inquest report which was held between 1.55 p.m. and 2.30 p.m., especially when the statement of Mihir (P.W. 1) was recorded at village Bamro at 12.30 p.m. treating it as F.I.R. It is true that the significance of the inquest relates to the apparent cause of death, but, when the police officer noted the gunshot injury as to the relevant column of cause of death, he definitely would have recorded the names of the assailants, if the same were stated by P.W.1 and P.W.2. The conspicuous absence of the names of assailants in the inquest signifies that the time of registering the F.I.R. at the Police Station and recording the statement of P.W.1 u/s 154 Cr. P. C. at village Bamro as shown in the evidence on record were extremely doubtful which cast a shadow of doubt in the veracity of the prosecution case.
26. In the case of Ramesh Baburao Devaskar and Ors. v. State of Maharashtra (Supra) it has been held by the Hon''ble Apex Court in paragraph 18 as follows:
A first information report cannot be lodged in a murder case after the inquest has been held....
27. In the aforesaid case it has been held in Paragraph 19 as follows:
In a case of this nature, enmity between two groups is accepted. In a situation of this nature, whether the first information report was ante-timed or not also requires serious consideration. First information report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence. The reason for insisting on lodging of first information report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of a first information report is always considered to be vital.
28. In the case of Mobrak SK. @ Mobarak Hossain and Ors. v. State of West Bengal it has been held in Paragraph 11 as follows:
...Before us one of the very forceful argument for disbelieving the prosecution case against the Appellants is this, although after lodging of the FIR naming the Appellants as the assailants, police came to the spot and held the inquest, still in the inquest report it was noted that the victim was assaulted by some miscreants. It is no doubt true that the statement contained in an inquest report is in the record of what Investigating Officer himself observed and found and such an evidence is the primary evidence in the case and there is no need to record the details of the prosecution case. But at the same time when the inquest is followed by the registration of a First Information Report as regards to the incident then in that case the gist of the FIR or the cause of death as narrated by the witnesses are also required to be noted....
29. In the next place, the question arises as to who lodged the First Information Report regarding the commission of the alleged murder. P.W. 6 Dharanidhar Garai has stated that the incident occurred on 12.2.1984 at about 8.00 in the morning; he was in his house at the relevant time and came out of the house on hearing the disturbance. He has stated that he saw Mihir and Pagal being chased by Satrughna, Bharat, Guhiram and Sitaram. It is in his evidence that from the other direction Durjadhan, Shakti and Dhirendra came; Durjadhan was carrying a tangi, Dhirendra was holding a gun; Shakti was also carrying spear (ballam). He has stated that seeing those persons with arms in such threatening mood, he escaped to Aimundi to inform the local police station of the incident; at the time of moving towards Aimundi he could hear the sound of gun firing. It is in his evidence that he narrated the entire incident to the police officer of the local P.S. and he requested to police officer to proceed to the P.O.
30. P.W. 16, the O.C. of the P.S., has stated that at about 10.35 hours he received a telephonic information from ASI Abdul Azim and following that information he proceeded to village Bamro with S.I., P.N. Mitra and police force. It is in his evidence that he recorded the statement of Mihir Garai on the spot at 12.30 hours u/s 154 Code of Criminal Procedure and the statement so recorded by him was sent to the local P.S. for institution of a case. P.W. 16 has stated in cross-examination that he received the telephonic message that Dharani Garai of village Bamro had lodged the G.D. entry with Purulia (M) P.S. to the effect that on that date at about 8.00 A.M. there had been a serious altercation between the families of Mihir, Satrughna and Durjadhan and thereafter he had heard the sound of firing; this information was recorded in the form of G.D. bearing No. 274.
31. P.W. 14, the S.I. of police, has stated that their object of visiting village Bamro was to hold inquest over the dead bodies of Jiten and Sushila Garai. It is the contention of Mr. Mitra that at that stage there was definite information regarding the death of Jiten and Sushila and, as such, the recording of the statement of P.W.1 at village Bamro as F.I.R. was hit by Section 162 Cr. P. C. Mr. Mitra contends that there is grave doubt as to which one was the information regarding the death of Jiten and Sushila reaching the P.S. first in point of time and the circumstances definitely point at fabrication and embellishment. It is the contention of Mr. Mallick that it is upto the discretion of the prosecution which document is to be produced before the Court to prove the charges and the prosecution having not produced the said G.D. entry No. 274, it was open to the defence to call for such G.D. entry from the police station. Mr. Mallick contends that in the absence of such endeavour on the part of the defence it cannot be said that there is any doubt or suspicion regarding the lodging of the F.I.R.
32. We are of the considered view that when P.W. 14 has stated that the object of visiting village Bamro was to hold inquest over the dead bodies of Jiten and Sushila, it is clear that definite information was received by the P.S. regarding the death and under such circumstances the non-production of the G.D. Entry No. 274 reasonably raises doubt. It was the duty of the prosecution to produce the said G.D. at the time of trial and the onus was not upon the defence to prove it. The information lodged by P.W.6 cannot be said to be cryptic and the non-production of the G.D. Entry No. 274 with the fact of the non-mentioning of the names of assailants in the inquest report creates serious doubt as to the time of lodging the F.I.R., the author of it and such information reaching the P.S. first in point of time.
33. From the cross-examination of P.W. 9 Sarubala Garai it would appear that her husband and her son have been implicated as accused persons in the alleged murder of brothers and mother of Shakti Garai; the alleged incident happened in the month of Shraban prior to this incident; Mihir and Pagal have also been implicated as accused persons in that alleged murder. In the F.I.R. itself it has been stated that during the month of August last year two sons of Durjadhan, his wife and another woman were murdered and the informant and others were all accused persons. In view of such evidence, the enmity between the parties is clear. In view of such admitted enmity between the parties, the evidence adduced by the prosecution has to be appreciated with great care and caution.
34. In the F.I.R. it has been stated that the informant finding that the accused persons came to attack he went inside the room and after the incident of firing he heard all about the incident from his injured brother Pagal. The informant P.W. 1 has stated that when the accused persons chased him, his uncle Jiten and aunt Sarubala came out of the house to know as to what led to the dispute; as Jiten was holding discussion with him and others, they heard the sound of gunshot; he found that his uncle Jiten was lying dead on the ground and his aunt and bother Pagal sustained serious injury. He has further stated that the miscreants chased him and he dragged his brother Pagal inside his house and thereafter bolted the door. In his evidence P.W. 1 tried to establish that he witnessed the occurrence of gunshot fired by the accused persons, but, in the F.I.R. he stated that he did not go out of room out of fear and he heard all about the incident from his injured brother Pagal.
35. There are two phases of the incident. Firstly, it is alleged that there was one gunshot causing death of Jiten and injuries to Pagal and Sarubala. The second phase of the incident is that after the gunshot incident was over, P.W.1 sent his mother Sushila to village Lanka for help and remained inside the house keeping the door bolted from inside.
36. It is in the evidence of P.W. 1 that Tarani Sen Mahato came to his house from village Lanka about 21/2 hours after the incident and Tarani informed him that Sushila had been murdered by the miscreants when she was coming back from Lanka. Tarani has been examined as P.W. 2. According to P.W. 7 Pagal, Tarani came to the house of P.W. 1, about 5/10 minutes after Pagal had been taken inside the house. So there is contradiction between P.W. 1 and P.W. 7 as to the time of arrival of Tarani at the house of P.W.1 after the incident of firing upon Sushila. This discrepancy tells upon the sequence of events between the first and second phase of incident as alleged in the F.I.R. and evidence of P.W.1.
37. Charge was framed u/s 302/149, I.P.C. against Sitaram, Dhiren and five other accused persons. Against Sitaram charge was also framed u/s 302/34. Both these charges were framed on 29th August, 1997. Prior to that on 15th April, 1996 charges were framed against nine accused persons including Shakti Pada Garai under Sections 302/149, 326/149 and 148 of the Indian Penal Code. Accused Shakti Pada Garai was found to be juvenile and his case was being tried separately. The learned Trial Judge ultimately convicted Dhiren under Sections 302/34 and 326/34 of the Indian Penal Code and Sitaram under Sections 302/34 of the Indian Penal Code and acquitted the rest of the accused persons.
38. So far as the first phase of the incident is concerned, that is, in front of the house of Mihir Garai, it has been stated that Dhiren had a gun in his hand and Shakti had a "farsa". It is the case of the prosecution that Shakti in the first phase fired one round as a result of which Jiten died instantaneously and at the same time Sarubala and Pagal sustained gunshot injuries. In the F.I.R. it has categorically been stated that Shakti had a "farsa", but, from the evidence of P.W.7 Pagal and P.W.9 Sarubala, it would appear that Dhiren handed over the gun to Shakti and passed order to kill. P.W. 1 did not witness the occurrence because finding that the accused persons were armed with weapons he entered inside the room. In the F.I.R. itself it has been stated that he heard the incident from Pagal. As regards the first phase of incident it is in evidence that one round was fired from the gun and thereafter Jiten fell down and at the same time Pagal and Sarubala sustained gunshot injuries. In this connection, the medical evidence is otherwise. It would appear from the P.M. report of Jiten that there were several firearm wounds on different parts of the body. When it is the specific prosecution case that one round was fired from the gun, the presence of so many firearm wounds on the person of Jiten, was not in conformity with the prosecution case.
39.P.W. 1 stated that Jiten with Sarubala were holding discussion as to what happened; at that time there was sound of firing; Jiten, Sarubala and Pagal fell down. But P.W. 9 Sarubala did not state about the holding of such discussion. P.W. 7 Pagal has stated that no such discussion was held. P.W.9 Sarubala did not state that Pagal was taken by P.W. 1 inside the room after Pagal sustained the injuries. There is contradiction between the F.I.R. and the evidence of P.W. 7 and P.W. 9 regarding the role of Dhiren. As per the F.I.R. Dhiren had the gun and Shakti had the "farsa". But in evidence P.W. 7 and P.W. 9 stated that Dhiren handed over the double barrel gun to Shakti and instructed him to murder all of them.
40. As regards the second phase of the incident, it is the prosecution case that Mihir sent his mother Sushila to inform his friend at village Lanka. Tarani Sen Mahato (P.W. 2) came and informed the P.W. 1 that Sushila had been murdered. In the F.I.R. it has been stated that incident of firing upon Sushila which took place in the field was witnessed by Tarani Sen Mahato, Jhagru, Bhutan Mahato and many others. Jhagru and Bhutan have not been examined. P.W. 2 Tarani Sen Mahato has stated in cross-examination that he was alone in the farm house for thrashing paddy; mother of Mihir was passing by his farm when he noticed her; he called her to enquire about the matter, but, she straightway went to the house of Tarani without answering him. P.W. 2 has stated that he remained in the farm even after the departure of Sushila. He has stated that Sushila was then going back weeping all the way and nobody from the farm asked him to go with Sushila. It is in the evidence of Tarani that he along with some other people followed Sushila and after coming some distance Sushila crossed a ''nala'' and at that time Shakti and Sitaram came and Shakti fired from his gun upon Sushila. It is also in the evidence of Tarani (P.W. 2) that Shakti again came back after a few minutes and fired again upon Sushila for the second time.
41. P.W. 1 has stated that Tarani came to their house 21/2 hours later and informed that Sushila has been murdered when she was coming back from Lanka, but, P.W. 7 Pagal who was inside the house of Mihir (P.W. 1) stated that Tarani came there 5/7 minutes after he was hit by pellet. So there was grave discrepancy regarding the alleged arrival of Tarani at the house of Mihir after the incident of firing upon Sushila was over. Tarani (P.W. 2) has stated that he returned to his village Lanka at about 12.30/1.00 P.M. Tarani signed the inquest report of Jiten Garai. The inquest of Jiten was completed at 2.30 P.M. If Tarani returned to his village Lanka at about 12.30 /1.00 P.M. there was no scope for him to put his signature on the inquest report at 2.30 P.M.
42. It is in the evidence of P.W. 2 that Shakti was armed with gun and Sitaram had a "farsa" in his hand and after gunshot upon Sushila he found Dhiren and others going towards the State of Bihar. It is in the F.I.R. that Mihir went to the field to saw his mother and when he was coming back home he found that accused Dhiren with a gun in his hand along with others were coming out of their room. The evidence of P.W. 2 (Tarani) that after the gunshot upon Sushila he found Dhiren and others going towards the State of Bihar, is contradictory to the statement made in the F.I.R. that when the informant after seeing her mother in the field came back home, Dhiren and others, were coming out of their house. The presence of Dhiren at the alleged place of attack upon Sushila is, therefore, not credible. P.W. 7 Pagal Garai has stated at the end of his cross-examination that Prahlad (P.W. 3) was present when Tarani narrated the incident to him. But, P.W. 3 did not state that he was present when Tarani was narrating incident to Pagal. The alleged presence of P.W. 2 at the place of incident of gunshot upon Sushila is very doubtful, in as much as, Tarinin himself stated that he was working in the farm and Sushila on being asked answered nothing and nobody asked Tarani to accompany Sushila. The evidence of Tarani regarding the alleged incident of gunshot upon Sushila does not inspire confidence.
43. Mr. Mitra has drawn our attention to the cross-examination of I.O. (P.W. 16) wherefrom it would appear that Tarini Mahato did not state that the mother of Mihir came to their village or that she had been going back to her village weeping all the way and the mother of Mihir reported to him that Shakti Garai murdered her relations by firing. The learned Counsel has also drawn our attention to the cross-examination of I.O. regarding the contradictions on material points in respect of other P. Ws. It is contended that the P. Ws on the material points did not make such statements to the I.O. u/s 161 and, as such, their evidence on such points being made for the first time at the time of trial would loose importance. We find that on material points there are contradictions with the earlier statements.
44. The evidence regarding the involvement of Dhiren to the effect that he handed over the gun to Shakti is also not convincing. When the learned Trial Judge held that the charges u/s 148/149 were not established, then it remained the individual acts of each accused person. We have already discussed that the evidence of Tarani (P.W. 2) regarding the incident of gunshot upon Sushila is not convincing. We also find that the evidence regarding the involvement of Appellant Dhiren being contradictory, is not worthy of credence.
45. P.W.15 is the doctor who examined Pagal Garai and he found multiple pellet injuries on his body. P.W.15 also examined Sushila Garai and found multiple pellet injuries on her person. It is the case of the prosecution that in the first place of the incident there was one gunshot, as a result of which Jiten Garai fell down and Pagal and Sarubala sustained injuries.
46. Mr. Mitra in this connection submits that only one gun was allegedly used in both the phases of the incident and the P.M. report shows bullet injuries on the person of Jiten and Sushila.
47. Mr. Mitra contends that one gun was seized and it was sent to the expert with the cartridges and the forensic science laboratory submitted the report (Exhibit-11) which relates to the examination of pellets. It is the condition of Mr. Mitra that if only one gun was used and seized, both pellets and bullets cannot be fired from the same gun.
48. P.W.16 has stated that the seized gun and the cartridges were sent to the expert for his opinion and he has proved the report submitted by forensic science laboratory (Exhibit-11). He has further stated that the report relates to the examination of pellets and other things. Exhibit 11 shows that the expert examined some pellets. The seized gun has been marked Mat Exhibit-I. Since it is the case of the prosecution that one gun was used at both the places, the presence of bullet injury on the person of the deceased vis-�-vis the examination of pellets by the expert creates doubt as to the prosecution case of firing from the same gun.
49. After careful perusal of the evidence on record we find that the prosecution case suffers from inherent improbability, contradictions and inconsistencies in the evidence of the P. Ws. Moreover, the evidence adduced by the prosecution for bringing home the charge is not convincing. The evidence on record, therefore, does not warrant conviction of the Appellants.
50. Having heard the submission of the learned Counsel appearing for the parties and on careful consideration of the evidence on record we are of the considered view that the learned Trial Judge was not justified in passing the impugned judgment of conviction and sentence. We, therefore, set aside the impugned judgment. The Appellants are acquitted of the charges. The appeal is allowed.
51. Let a copy of this judgment be sent to the Correctional Home where Appellant Dhirendra Garai is now detained.
52. Let a copy of this judgment along with the lower court records be also sent to the learned Court below immediately.
53. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
Mrinal Kanti Sinha, J.
54. I agree.
