Judgment:
1. Since both the appeals arise out of the common judgment it were heard together and are being disposed of by this common judgment.
2. The appellant, Ram Prasad Mandal having been found guilty for committing murder of one Baldeo Mandal was convicted under Section 302 of the Indian Penal Code whereas the other appellants including Mahadeo Mandal and Thetho @ Titu Mandal @ Thetho Mandal (Both died during the pendency of this appeal) were convicted under Section 302/149 of the Indian Penal Code and all of them were sentenced to undergo rigorous imprisonment for life. Further the appellant, Robin Mandal having been found guilty for an offence under Section 307 of the Indian Penal Code for making an attempt on the life of Mull Mandal and Kalia Mandal was sentenced to undergo rigorous imprisonment for 7 years. He was further sentenced along with Ram Prasad Mandal, and Thakur Mandal to undergo rigorous imprisonment for two Years under Section 148 of the Indian Penal Code whereas all other accused wore sentenced to undergo rigorous Imprisonment for one year under Section 147 of the Indian Penal Code.
3. The case of the prosecution is that on 30.6.1986 at about 4 P.M. while Alosi Maldalain (P.W.5) wife of the deceased was working inside the house, she heard some sound as if someone is breaking the roof tiles. When she came out, she saw the appellants, Jhupar Mandal, Congress Mandal and Salik Mandal breaking the tiles of her roof by lathi and then raised alarm. Upon it, all the three persons came to the house of the appellant Mahadeo Mandal (since died). Meanwhile, her husband (deceased) came running over there. On seeing him, the appellants, Mahadeo Mandal, Robin Mandal and Thetho @ Titu Mandal @ Thetho Mandal (since died) exhorted others to kill him. Thereupon, all the appellants came near his house along with 8-10 unknown persons and then appellant, Ram Prasad Mandal on the order of Mahadeo Mandal shot an arrow which hit on the chest of Baldeo Mandal, who died at the spot. In that occurrence Muli Mandal (P.W.2) and Kaila Mandal (P.W.3)also sustained Injuries caused by arrow.
4. On the next day at about 10.30 A.M, Chaukidar Harilal Mandal informed to one P.C. Malviyar (P.W.7) the Officer- in-Charge, of Karon Police Station that some persons have sustained injuries in course of altercation in between Mahadeo Mandal and Baldeo Mandal. The Officer-in-Charge having entered the said information in the Station Diary (Ext.A) proceeded to the place of occurrence where he reached at about 4 P.M. and recorded Fardbeyan (Ext.3) of Alosi Maldalain (P.W.5) wife of the deceased wherein she disclosed that her husband, whose parents had died In his childhood, was brought up by Dasrath Mandal, father of the appellant Thetho @ Titu Mandal @ Thetho Mandal, who had given two bighas of the land to his husband which the appellants wanted to get it back and as such, they committed offence in the manner stated above. On the basis of said Fardbeyan, a case was instituted. After taking over the investigation, the Investigating Officer recovered four arrows (Exts.1 to 1/3) from the place of occurrence which were seized under seizure list (Ext.5). The Investigating Officer having found Mull Mandal (P.W.2) and Kaila Mandal (P.W.3) Injured referred to them to Doctor (for their examination. Accordingly, both were examined by Dr. Harihar Prasad Mandal (P.W.8) who found the following Injuries on the Kaila Mandal.
5. Punctured wound 1/2' x 1- 1/2' x 2' directing upward in front of left side of chest.
6. Dr. also found following Injuries on the person of Mull Mandal (P.W.2)
7. Punctured wound 1/2' x 1/2 ' x 2' directing upward on lateral side of right thigh.
8. Injuries on both the persons as per injury report (Ext.7 and 7/1) were found to be simple.
9. The Investigating Officer, on holding inquest on the dead body prepared inquest report (Ext.4) and then sent the dead body for post mortem examination which was conducted by Dr. Kameshwar Prasad (P.W.6), who found following ante mortem injuries.
One lacerated penetrating wound of 1/4 ' diameter on front of chest, in middle at the base of membrane sternum x chest cavity deep.
On opening the chest, right pleura and right upper and middle of right lung was found punctured.
10. Dr. issued post mortem examination report (Ext.2) with an opinion that death was caused due to shock and bleeding, as a result of above noted Injuries caused by substance like an arrow.
11. On completion of investigation, police submitted charge sheet against the appellants upon which cognizance of the offence was taken and in due course When the case was committed to the court of sessions, charges were framed to which the appellants pleaded not guilty and claimed to be tried.
12. In course of trial, the prosecution examined as many as five witnesses. On them, Muli Mandal (P.W.2), Kaila Mandal (P.W.3), Jhuniya Mandalain, daughter-in-law of the deceased, (P.W.4) and P.W.5 the informant, Alosi Mandalain (wife of the deceased) are the eye witnesses.
13. According to the case of the defence, they have falsely been implicated in this case due to enmity and, in fact, occurrence never took place in other manner it was projected by the prosecution rather it took place in the manner it was given by accused Mahadeo Mandal (since died) in his Fardbeyen (Ext.B) which has been recorded on the same day when the Fardbeyan of the informant was recorded wherein it has been stated by said Mahadeo Mandal that when the members of the prosecution party did attack on his house and caused injury to his daughter-in-law, he shot arrows causing injury to the deceased and other Injured.
14. That apart, one of the appellants, namely, Ram Prasad Mandal had also taken plea of alibi and In order to prove such plea, he has examined himself as D.W.3 and also produced a document (Ext.4) to establish thai he, on the day of occurrence, was at Asansol.
15. The trial court having found the appellants guilty passed the order of conviction and sentenced as aforesaid.
16. Being aggrieved with the judgment of conviction and order of sentence, the appellants have preferred this appeal.
17. Learned counsel appellants submits that occurrence as has been claimed by the prosecution never occurred in the manner In which it has been projected, rather it took place in the manner which was projected by Mahadeo Mandal (since died) in his Fardbeyan (Ext.B) recorded by the same Investigating Officer on the same day when he had recorded the Fardbeyan of the informant (P.W.5) and the version of the Mahadeo Mandal gets support from the objective finding of the Investigating Officer whereby he found marks of arrow on the door and over the wall of the house of the deceased but this aspect of the matter, which was quite significant to show the falsity of the prosecution case was never taken into consideration In right perspective by the learned trial judge and hence, the order of conviction and sentence is quite bad.
18. However, learned Counsel appearing for the State submits that versions of the eye witnesses as many as five in number get corroboration from the medical evidence and therefore, trial court has rightly passed the order of conviction and sentence against them.
19. On perusal of the record, we do find that P.W.1 Sito Mandal, P.W.2 Muli Mandal, P.W.3 Kaila Mandal and P.W.4 Jhuniya Mandalain all claimed themselves to be the eye witnesses have testified that while the appellants, Jhupar Mandal, Congress Mandal and Salik Mandal were breaking the tiles of the roof of the house of the deceased, the Informant Alosi Mandalain (P.W.5) raised alarm and then the accused persons came to the house of Mahadeo Mandal. Meanwhile, when Baldeo Mandal (deceased) came to his house, Ram Prasad Mandal on the order of Mahadeo Mandal shot an arrow causing injury to Baldeo Mandal, who fell down and died. They have further deposed that when Muli Mandal (P.W.2) and Kaila Mandal (P.W.3) came over there, the appellant Rabin Mandal shot arrows which hit them, as a result of which they became injured. Similar is the version of the informant (P.W.5). But the testimonies of all the witnesses are susceptible to doubt for the reason that P.W.7, the Investigating Officer when came at the place of occurrence, he did notice the marks of arrow hitting on the wall as well as on the door of the house of the deceased, whereas according to the prosecution witnesses, one arrow shot by the appellant Ram Prasad Mandal hit the deceased and other two arrows shot by him hit the injured Muli Mandal (P.W.2) and Kaila Mandal (P.W.3) and the third one went off abegging. Under this situation, had that version been true, there would have no scope of finding arrow marks on the door as well as on the wall of the house of the deceased but those marks were found to be there which certainly creates doubt over the manner of occurrence, as projected by the prosecution which also becomes doubtful by the disclosure made by the Choukidar before the Officer-in-Charge of Karon Police Station disclosing therein that some persons sustained injuries in course of altercation in between the Baldeo Mandal and Mahadeo Mandal. The said information which had been entered into the Station Diary has been proved as Ext.A. The doubt further deepens when one takes notice of the statement made by the accused Manadeo Mandal (since died) before the Investigation Officer at the place of occurrence on the same day in his Fardbeyan (Ext.B) wherein It has been stated that while he was in his house, the deceased and also other accused persons came to his house and started breaking the tiles and upon it, when his daughter-in-law came, she was assaulted, as a result of which, she fell down and when he brought her inside the house, accused persons entered into the house by breaking upon the door and started searching him and then in order to save his life, he shot 3-4 arrows. Later on it was told to him that one arrow hit Baldeo Mandal, as a result of which he died and Muli Mandal and Kaila Mandl sustained injuries as they were also hit by arrow. This statement seems to have been made simultaneously when the Fardbeyan of the informant was recorded and, therefore, it cannot be thrown out-rightly as an after thought story, rather in the facts and circumstances, story of the defence appears to be more probable. On the other hand, prosecution seems to have failed to establish even the genesis of occurrence as according to the prosecution case, three accused persons came to the house of the deceased and started breaking the roof tiles. On seeing this when informant (P.W.5) raised alarm, they came to the house of other accused and subsequent to it occurrence took place but factum of breaking of the tiles never seems to have been established by the prosecution as the Investigating Officer in his objective finding has never said about the breaking of the tiles of the house of the deceased.
20. Going further in the matter, we do find that, according to eye witnesses, when Baldeo Mandal fell down after being hit by arrow, P.W.2 Mull Mandal and P.W.3 Kaila Mandal reached over there and then they sustained arrow injuries when it was shot by Robin Mandal but it is strange to note that P.W.2 Mull Mandal though in his examination-in-chief has supported the prosecution case but he never seems to have stated about the occurrence In the manner in which he deposed in his statement under Section 161 of the Code of Criminal Procedure where he had stated that he never saw anyone shooting from an arrow. If this was the first version of P.W.3, then that also creates doubt over the testimony of P.W.2, another eye witness as he also seems to have reached at the place of occurrence simultaneously with P.W.3.
21. So far P.W.1, Sito Mandal and P.W.4 Jhuniya Mandalain (daughter-in-law of the deceased) are concerned, they though have claimed to have seen the accused persons shooting arrows but their names do not find mentioned in the Fardbeyan of P.W.5, rather P.W.5 in her Fardbeyan only speaks about the P.Ws. 2 and 3, whom she saw at the place of occurrence. Accordingly, credibility of these two witnesses are also not above board.
22. Thus, prosecution does not seem to have established the case beyond all reasonable doubt, rather, in the circumstances as stated above, all the appellants deserve benefit of doubt. Accordingly, the order of conviction and sentence passed by the trial court is hereby set aside. Consequently, they are acquitted of the charges levelled against them and are discharged from the liability of the bail bonds.
23. In the result, these two appeals are allowed.