Calcutta High Court (Appellete Side)
Krishna Pada Mahato vs The State Of West Bengal on 25 August, 2014
Author: Samapti Chatterjee
Bench: Nishita Mhatre, Samapti Chatterjee
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Samapti Chatterjee
C.R.A 469 of 2003
Krishna Pada Mahato.......Appellant
Versus
The State of West Bengal.....Respondent
For the Appellant : Mr. Mainak Bakshi
For the State : Mr. Angshuman Chakraborty
Heard on : 12.08.2014 & 13.08.2014
Judgment on : 25th August, 2014.
Samapti Chatterjee, J.
(1) The instant appeal is directed against the Judgment and Order of conviction passed in Sessions Trial being No. 5 of 1998 passed by the Learned Additional Sessions Judge, 1st Court, Purulia on 29th day of April, 2003 and 30th day of April, 2003 holding the accused/appellant guilty of offence punishable under Sections 302/323 of the Indian Penal Code to suffer rigorous imprisonment for life with a fine of Rs.1000/- only, in default, to suffer further rigorous imprisonment for one year for commission of the offence punishable under Section 302 of the Indian Penal Code. He was also convicted and sentenced to suffer rigorous imprisonment for one year for commission of the offence punishable under Section 323 of the Indian Penal Code. It was also ordered that both the sentences shall run concurrently.
(2) Briefly, the prosecution case runs as under:-
(3) On 10.09.1993 the informant - Pasupati Mahato had been to his cauli-flower field in the morning and was engaged in drainage operation of the accumulated water therein and at about 7:00 A.M. one Satrughna Mahato, a resident of vill. Nowadi, came there and told that Krishna Pada Mahato fired at his brother - Rampada Mahato from his own gun. Within a short while another resident named Sahibram came there running and also apprised him about the incident and the informant rushed to the spot and found a large number of people assembled in front of the house of Krishna Pada Mahato and he found Rampada Mahato lying dead while his wife was also lying there with severe injuries on her head. The local people requested the informant to report the incident to local Police Station and, accordingly, the informant came to the Police Station and lodged a written complaint with Barabazar Police Station whereupon Barabazar P.S. Case No.64/1993 dated 10.09.1993 was started against the accused and investigation entered upon.
(4) During investigation the accused- Krishnapada Mahato surrendered at the P.S. with S.B.B.L. Gun bearing No.AL-2704 and P.W.18 -Binoy Ranjan Dutta, I.O. of this case; seized the said gun with three live cartridges and accused's blood-stained 'dhoti' and 'ganjee' under a seizure list (Exbt. 2/3) in presence of witnesses. Accused also confessed before him that he had fired at his brother- Rampada Mahato. The I.O., Binoy Ranjan Dutta, arrested the accused and recorded his confessional statement under Section 161 Cr.P.C. and thereafter he sent the injured - Anjana Mahato, wife of the deceased - Rampada Mahato to the hospital for medical treatment and held inquest over the deadbody of Rampada Mahato. The carbon copy of the Inquest Report has been marked as Exbt.3/3 and he also dispatched the deadbody of Rampada to Sadar Hospital Morgue for Post Mortem Examination and P.W.16 Dr. A.K. Pakrashi held Post Mortem Examination over the dead body of the deceased. In course of investigation the I.O also seized the blood-stained wearing apparels of the deceased under the seizure list in presence of witnesses and also seized the blood- stained earth from the place of occurrence under a seizure list. He also collected the Injury Report of injured Anjana Mahato from Barabazar P.H.C. and subsequently the P.W.12 S.I, Anandamoy Goswami took over charge of further investigation of the present case and in course of investigation collected the F.S.L. Report and after obtaining the necessary permission from S.P, Purulia submitted charge-sheet against the accused person under Sections 302/323 of the Indian Penal Code. Eventually charge under Sections 302/323 of the Indian Penal Code came to be framed against the accused and accordingly the trial started against the accused.
(5) After completion of the trial the Learned Additional Sessions Judge, 1st Court, Purulia held the appellant guilty and convicted him as aforesaid.
(6) The prosecution examined as many as 19 witnesses as mentioned hereunder:-
(a) P.W.1 Pashupati Mahato is the nephew of the accused Krishnapada Mahato and the defacto complainant of this case.
(b) P.W.2 Judhistir Mahato is a resident of Mauza Noadih.
(c) P.W.3 Ganesh Mahato is a resident of Mauza Noadih.
(d) P.W.4 Saheb Ram Mahato is the brother of the accused Krishna Pada Mahato and deceased Rampada Mahato and declared as hostile witness.
(e) P.W.5 Buchan Mahato is a resident of Mouza Noadih and declared as hostile witness.
(f) P.W.6 Satraghna Mahato is the uncle of accused Krishna Pada Mahato and deceased Ram Pada Mahato declared as hostile witness.
(g) P.W.7 Anisur Rahaman is a police constable who performed duty as sentry of the P.S.-Barabazar on that very date.
(h) P.W.8 Thakurdas Majhi is a resident of Vill-Bamnidih.
(i) P.W.9 Tarapada Majhi is also a resident of Vill-Bamnidih.
(j) P.W.10 Ananda Mahato is a resident of Vill-Nawadih and declared as hostile witness.
(k) P.W.11 Anjana Mahato is the wife of the deceased Rampada Mahato and an alleged eye witness of the case.
(l) P.W.12 Anandamay Goswami, S.I of Police investigated the case and submitted chargesheet after completion of investigation.
(m) P.W.13 Sadananda Majhi is a resident of Nowadih.
(n) P.W.14 Madan Mahato is the nephew of the accused Krishna Pada Mahato and declared as a hostile witness.
(o) P.W.15 Kiriti Bhusan Sinha is a Medical Officer.
(p) P.W.16 Dr. Ajoy Kumar Pakrashi held post-mortem examination over the dead body of the deceased Rampada Mahato.
(q) P.W.17 Abani Mahato is the wife of the accused Krishna Pada Mahato.
(r) P.W.18 Binoy Ranjan Dutta , S.I of Police received written complaint from Pasupati Mahato.
(s) P.W.19 Bomkesh Tripathy is the Health Supervisor of Barabazar B.P.H.C. (7) Thus, it is apparent that the prosecution relied on evidence of 2 eye witnesses of the incident being P.W.10 and P.W.11 to prove that the accused committed murder of his brother deceased Rampada Mahato with his own gun and made severe injuries on the head of the P.W.11, wife of the deceased. Besides that the prosecution also relied on the post-mortem report which depicts that cause of death was due to shock and hemorrhage as a result of fire arm injury which was ante-mortem and homicidal in nature. (8) We have heard Mr. Mainak Bakshi, learned Counsel appearing on behalf of the appellant while the respondent/state has been represented by learned Counsel Mr. Angsuman Chakraborty. (9) Learned Counsel appearing for the appellant Mr. Mainak Bakshi has taken us through the oral testimonies of P.W.1, P.W.2, P.W.3,P.W.4, P.W.5, P.W.6, P.W.10, P.W.11, P.W.12, P.W.15, P.W.16, P.W.17 and P.W.18.
(10) Learned Advocate Mr. Mainak Bakshi also pointed out to us some variations/contradictions/discrepancies from the evidence given by those witnesses and also highlighted several infirmities in the prosecution case which are broadly as follows:-
(a) That the injury of P.W.11 wife was not proved ;
(b) Injury report written in the white paper and doctor signed on the bottom of the said paper and not in a printed form but in the government hospital the practice is that injury report of the person should be written in a printed form by the doctor ;
(c) The said doctor who signed the injury report in white paper was not examined as he expired long back ;
(d) The prosecution failed to supply the date of death of that late Doctor K.K. Biswas ;
(e) None of the witnesses stated that the P.W.11 was present in the place of occurrence and she sustained bleeding injuries on her head by the accused Krishna Pada Mahato. She narrated the incident to other witnesses later on ;
(f) Seizure list is a contradictory one ;
(g) It was not proved why the accused loaded 2 fresh cartridges in the said fire arm and handed over the same to the police ;
(h) The P.W.1 in his deposition stated that the police called him from a tea stall and told him that gun and cartridges had been seized and he was asked to sign on the seizure list ;
(i) The police did not mention wherefrom the gun and the cartridges had been seized ;
(j) P.W.1 is a hostile witness. P.W.1 in his deposition stated that he found bandage on the head of his aunt at the hospital and he did not ask anything to his aunt regarding injury ;
(k) The accused Krishna Pada Mahato says in his defence that after firing he left the empty cartridge and he loaded one fresh cartridge and two other fresh cartridges and deposited all these along with the gun at the police station but why he did so was not mentioned in his statement ;
(l) P.W.2 in his deposition stated that he heard that the wife of Rampada Mahato had been taken to Barabazar hospital. He had not seen her. He further deposed that he had seen the deadbody of the deceased Rampada in his room ;
(m) P.W.3, a hostile witness stated in his cross-examination that he heard his aunt was taken to the hospital. He went to the hospital later on to see his aunt and he saw bandage on the head of his aunt at hospital ;
(n) P.W.4 is also a hostile witness ;
(o) P.W.5 is a hostile witness and declined to depose anything ;
(p) P.W.6 is a hostile witness ;
(q) P.W.7 the police constable deposed that on 10th September, 1993 at about 8:55 A.M. one man came at the police station with his gun. He had wearing apparel having blood-stain.
P.W.7 asked him the reason. The accused handed over the gun to the officer-in-charge and he confessed that he had murdered his brother, the deceased Rampada Mahato and he wanted to surrender. The Officer-in-charge seized the gun and the cartridges ;
(r) P.W.9 a clerk working at Talpada Gram Panchayat stated in his deposition that it is not possible for him to say that from whom the P.W.8 and P.W.9 heard the rumor of receiving gun shot injury of Rampada by his brother Krishna Pada Mahato, the accused/appellant ;
(s) P.W.10 is an eye witness and the next door neighbour in his deposition stated that he went to tend his buffaloes in the morning and he returned to his house at 'basam' time. Sometime after he heard a hue and cry from the house of accused Krishna Pada Mahato and his house is intervened by a wall and there is a hole on the boundary wall. He saw through the said hole that accused Krishna Pada and his brother deceased Rampada and his wife P.W.11 were fighting to take control of a gun. It was then 9/10 a.m.. Thereafter he heard a sound of firing and rushed to the house of accused Krishna Pada Mahato and found that deceased Rampada was lying dead and P.W.11 the wife of Rampada sustained bleeding injury on her head. He also found a gun lying on the ground and there was an axe and one lathi. He also saw marks of gun shot injury in the abdomen of deceased. He did not see accused Krishna Pada there ;
(t) P.W.14 stated in his deposition that he did not say whether the wife of the deceased Rampada was present or not ; (u) P.W.18, the I.O of the case, failed to obtain any signature of the accused on his confessional statement dated 11th September, 1993.
(11) Summing up the aforesaid contention learned Counsel appearing for the appellant concluded that the prosecution has hopelessly failed to establish the charges brought against the appellant and thus, conviction cannot be sustained. Therefore, the appellant is entitled to an order of acquittal by setting aside the impugned judgment and order.
(12) In support of his contention learned Advocate appearing for the appellant referred to and relied on the following Apex Court decisions :
(i) On the point of testimony of eye witnesses who are neither wholly reliable nor wholly unreliable the Apex Court decision reported in 2012 SAR (Criminal) 244 Para 12, 14 and 15 (Sampath Kumar Vs. Inspector of Police, Krishnagiri with Crl. A. Nos. 1205 & 66 of 2010) are set out as follows :-
Para 12. - In the present case the statement made by Palani (P.W.7) is in complete contrast with the statement made by him before the Police where witnesses stated nothing about having seen the appellants standing near the deceased around the time of the incident. This omission is of very vital character. What affects the credibility of the witness is that he did not in his version to the police come out with what according him is the truth, but withheld it for a period of five years till he was examined as a prosecution witness in the Court. This court in Vadivelu Thevar V. The State of Madras (AIR 1957 SC 614) classified witnesses into three categories, namely, (i) those that are wholly reliable, (ii) those that the wholly unreliable and (iii) who are neither wholly reliable nor wholly unreliable. In the case of the first category the Courts have no difficulty in coming to the conclusion wither way. It can convict or acquit the accused on the deposition of a single witness if it is found to be fully reliable. In the second category also there is no difficulty in arriving at an appropriate conclusion for there is no question of placing any reliance upon the deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial.
Para 14- In the present case the testimony cannot be wholly reliable or wholly unreliable. He is not a chance witness who had no reason to be found near the deceased at the time of the occurrence. There is evidence to show that Palani (P.W.7) used to sleep with the deceased-Senthil in the verandah of the house. What makes it suspect is that the witness has, despite being a natural witness, made a substantial improvement in the version without their being any acceptable explanation for his silence in regard to the fact and matters which was in his knowledge and which would make all the difference in the case. The Court would, therefore, look for independent corroboration to his version, which corroboration is not forthcoming. All that is brought on record by the prosecution is the presence of a strong motive but that by itself is not enough to support a conviction especially in a case where the sentence can be capital punishment. In N.J. Suraj v. State represented by Inspector of Police (2004) 11 SCC 346, the prosecution case was based entirely upon circumstantial evidence and a motive. Having discussed the circumstances relied upon by the prosecution, this Court rejected motive which was the only remaining circumstance relied upon by the prosecution stating that the presence of a motive was not enough for supporting a conviction, for it is well-
settled that the chain of circumstances should be such as to lead to an irresistible conclusion, that is incompatible with the innocence of the accused. To the same effect is the decision of this Court in Santosh Kumar Singh v. State through CBI.
(2010) 9 SCC 747 and Rukia Begum v. State of Karnataka AIR 2011 SC 1585 where this Court held that motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant. Reference may also be made to the decision of this Court in Sunil Rai @ Paua and Ors. V. Union Territory, Chandigarh (AIR 2011 SC 2545). This Court explained the legal position as follows:-
"In any event motive alone can hardly be a ground for conviction. On the materials on record, there may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take the place of proof".
Para 15- Suffice it to say although, according to the appellants the question of the appellant-Velu having the motive to harm the deceased-Senthil for falling in love with his sister, Usha did not survive once the family had decided to offer Usha in matrimony to the deceased-Senthil. Yet even assuming that the appellant-Velu had not reconciled to the idea of Usha getting married to the deceased-Senthil, all that can be said was that the appellant-Velu had a motive for physically harming the deceased. That may be an important circumstance in a case based on circumstantial evidence but cannot take the place of conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the appellant but suspicion, howsoever strong, also cannot be a substitute for proof of the guilt of the accused beyond a reasonable doubt.
(ii) On the point of evidence of hostile witness need not be completely rejected only because he has turned hostile, the Apex Court decision reported in 2013 SAR (Criminal) 233 Para 21 and 23 (Gudu Ram Vs. State of H.P.) are set out as follows :
Para-21- The prime question that we are required to consider is the credibility of Jai Pal Singh since he was the only eyewitness to the crime and had turned hostile.
Para-23- The law on the treatment of the evidence of a hostile witness is that the evidence of such a witness need not be completely rejected only because he was turned hostile. The Court must, however, be circumspect in accepting his testimony and, to the extent possible, look for its corroboration.
(iii) On the point of the testimony of interested witnesses, the Supreme Court decision reported in AIR 1981 SC 942 Para 18 (Ram Ashrit and others Vs. State of Bihar) as follows:-
Para-18- There are many other infirmities and contradictions in the evidence of the prosecution witnesses. It is not necessary to burden this judgment by dealing with all of them. Suffice it to say that in the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the appellants on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable versions and materiel infirmities.
(13) On the other hand learned Advocate Mr. Chakraborty supporting the prosecution case submitted that the principal ground on which the defence has assailed the impugned judgment and order of conviction is without any substance and not merit consideration.
According to the learned prosecution Counsel the impugned judgment is well contended and well reasoned. Thus, it deserves no interference. The submission of the learned Advocate for the prosecution may be summerised in the following manner :
(a) That the FIR narrated regarding injury of P.W.11, wife of the deceased ;
(b) Whatever the P.W.1 narrated in the FIR that was stated in the Court also ;
(c) P.W.3 in his cross-examination stated that his aunt was taken to hospital ;
(d) The post mortem report stated regarding gun shot ; (14) The learned Advocate appearing for the respondent further contended that the evidence of injured eye witness cannot be rejected merely on ground that they were interested witnesses. On the other hand if deposition of injured witness corroborates with other witnesses then that should be taken into consideration by the Court. Learned Advocate appearing for the state in support of his contention referred to and relied on the Apex Court Judgment reported in AIR 1993 SC 1175 Para 4 and 5 (Nallamsetty Yanadaiah and others Vs. State of Andhra Pradesh) and those are set out as follows :
Para-4- As already mentioned above, the High court confirmed the convictions of A-2, A-3, A-5, A-7 A-18, A- 22, A-34 and A-48 under Ss.302/149, IPC. The convictions of some other accused for minor offences were also confirmed. Of course, A-18 as mentioned above, is not an appellant before us. Learned counsel for the appellant submits that the witnesses are all partisans and it would not be safe to accept their evidences, particularly, when they did not hesitate to implicate A-11 falsely, whose alibi has been accepted by both courts below. Learned counsel also submits that the eye-witnesses were all interested witnesses and they tried to implicate many innocent persons and that it would be highly unsafe to accept their evidence. We see no substance in his submission. Here is a case where a large number of persons armed with deadly weapons, like guns and other cutting weapons, participated in the occurrence during which four persons were killed and many of the witnesses who were present were also injured. It may be that they are all interested witnesses. But on that ground alone their evidence cannot be rejected. Their evidence is to be subjected to close scrutiny. As a matter of fact, the learned Sessions Judge, as well as the High Court have considered evidence of each of the witnesses with great care and caution. Both the courts below have acquainted such of those accused against whom the court felt the prosecution case is not good beyond all reasonable doubt.
Para-5- Now coming to the appellants, the injured witnesses have specifically stated in their evidence that they have caused the death of D-1, D-3 and D-4. So far as D-2 is concerned, nobody was convicted for want of satisfactory proof. The remaining accused, namely A-3, A-5, A-18, A-22 and A-48 were also convicted under Ss.302/149, IPC on the ground that their presence is established by the fact that they caused injuries to the witnesses. According to the prosecution evidence, A-5 caused injuries to PW-19, A-22 caused injuries to PW-20 and A-48 caused injuries to PW-18 and A-3 caused injures to P.W.11. For the purpose of application of S.149, IPC, the prosecution has to prove the presence and participation in an unlawful assembly. The presence of these accused was mentioned consistently by all the witnesses. In a case of this nature, particularly, when the occurrence has taken place in a village, several villagers might have gathered and therefore, the further test is whether the participation has been proved so that their being members of an unlawful assembly can be accepted safely. In that view of the matter, the Courts below accepted the evidence of the injured witnesses who consistently deposed that these accused who were convicted under S.302/149, IPC, were present and also participated in the occurrence by inflicting injuries on PWs.11, 16 and 20. This view of the courts below is quite consistent with the settled principles in respect of application of 149, IPC.
We find that this decision has no manner of application in the present case as none of the witnesses saw P.W.11 sustained injury on head by the accused Krishna Pada Mahato. On the contrary the Doctor K.K. Biswas (since deceased) gave his report on a white paper instead of printed form which in normal practice is used by the government hospital.
(15) There can be no dispute that deceased Rampada Mahato died a homicidal death. The question is now whether the prosecution has been able to connect the present appellant with the alleged crime ? (16) Let us now examine the oral and documentary evidence of the witnesses.
(17) Giving a minute and critical scrutiny into the evidence both oral as well as documentary with the meticulous care we see that whole prosecution case is built on the deposition of alleged eye witnesses P.W.10 and P.W11.
(18) We find that P.W.1 stated in his cross-examination that police told him the way to write the FIR and he wrote the FIR accordingly, He further deposed in his cross-examination that he did not see the seized gun and cartridges at the police station. Police called the P.W.1 and told him that gun and cartridges had been seized and he was asked to sign on the seizure list. Police did not mention wherefrom the gun and cartridges had been seized. (19) We find that P.W.2 resident of Noawdih stated in his deposition that he heard that the wife of Rampada, P.W.11 had been taken to Barabazar Hospital. But he did not visit her in hospital. (20) We find that P.W.3 (declared hostile) in his cross-examination stated that his aunt was sent to hospital. He was not at their house at that time. He went to the hospital later on to see his aunt.
(21) But we find that P.W.18 the Investigating Officer of the case S.I Anandamay Goswami is confronted with the statement of P.W.1, P.W.2 and P.W.3.
P.W.1 Pasupati Mahato stated before the Investigating Officer P.W.18 that on his way back from the police station after lodging the complaint he found Krishnapada Mahato with gun and cartridges. P.W.18 in his deposition further stated that the P.W.3 in his statement under Section 161 of Cr.P.C stated that he found that people were running and they were saying that Krishna Pada Mahato had fired at Rampada by a gun and he went to the house of Rampada where he found his father and other people. He also found Rampada lying on his back. Hence, there are material omissions and therefore no reliance can be placed on the evidence of P.W.1, P.W2, and P.W.3.
(22) P.W.10 the alleged eye witness stated in his deposition that the house of accused and the house of P.W.10 is intervened with a wall and there is a hole on the boundary wall. He saw through the said hole that accused Krishna Pada , his brother Rampada (deceased) and his wife P.W.11 Anjana Mahato were fighting to take control of the gun at about 9/10 A.m. Thereafter he heard a sound of firing and he rushed to the house of accused Krishna Pada and found that Rampada was lying dead and wife of Rampada sustained injuries on her head. He also found there was an axe and one lathi.
(23) We find that P.W.11 alleged eye witness and the wife of the deceased Rampada Mahato stated in his deposition that in the morning the accused Krishnapada returned to their house with buffaloes at about 7 a.m. and asked his sons and daughters who has pressed those stone slabs at the muddy courtyard. When his daughter replied that their uncle had placed those stone slabs the accused then told that he will give a lesson to them and entered to the house and came out with a gun in his hand and fired from his gun aiming towards her husband Rampada (deceased) who was standing on the varanda at that time. The P.W.11 in her deposition also stated that she narrated the story of murder to the other witnesses.
(24) We find P.W.18, Investigating Officer in his deposition stated that the P.W.10 Ananda Mahato in his statement under Section 161 Cr.P.C stated before him that he heard a sound of firing from the side of village and heard outcry and scream and that he returned home with buffaloes and heard Krishnapada had fired at his brother Rampada. He also stated before the Investigating Officer under Section 161 Cr.P.C that wife of Rampada told him that since the courtyard became muddy due to rain Rampada placed some stone pieces for convenience of egress and ingress. He also stated to the P.W.18 that Rampada's wife stated to the P.W.10 that at 7 am Krishna Pada returned home with buffaloes and asked his daughter who placed stones in the courtyard and the daughter replied that stones were placed by her uncle Rampada and then accused Krishnapada said that he will give a lesson to Rampada and loaded the gun and shot at Rampada who was standing near the door by the side of the wall.
(25) But we find that P.W.18 the Investigating Officer in his deposition stated that the P.W.10 did not state before him that he found through a hole that Krishna Pada, Rampada and his wife were pulling the gun. In course of investigation the Investigating Officer P.W.18 also did not find any hole in wall of the house of the deceased and we also find that none of the witnesses stated that they found the P.W.11 sustained injury on her head by the accused Krishna Pada. Hence, there are material omissions and therefore no reliance can be placed on the evidence of alleged eye witnesses P.W.10 and P.W.11.
(26) We find that P.W.1 was told by the police how to write the FIR and the PW.1 wrote the FIR accordingly and he also asked to sign over the seizure list by the police.
(27) We find that no ballistic report was prepared. (28) We find from the post mortem report that cause of death in the doctor's opinion was due to shock and hemorrhage as a result of fire arm injury which was ante-mortem and homicidal in nature. But in the cross examination the P.W.16, the doctor stated that he could not give any expert opinion regarding foreign bodies. He was not cent percent confirmed as to whether those foreign bodies found in the deadbody with the pellets or not . He further stated in his cross-examination that there was note of dimension in Exbt 9 regarding congested tissues of abdominal walls. The openings in the peritoneum also did not appear in dimension. Scorching can also be caused by other injuries except fire arms. P.W.16, the doctor further stated in his cross-examination that in that particular case it can be presumed that the person died approximately 48 hours prior to post-mortem examination. (29) We also find from the Exbt.11 that doctor K.K. Biswas (since deceased) gave a report in a white paper on 10th September, 1993 that he examined the P.W.11 on 10th September, 1993 and subsequently doctor K.K. Biswas expired. It is the usual practice of the government hospital that doctors should explain their report in a printed from but not in a white sheet of paper. But in the present case we find that doctor K.K. Biswas (since deceased) explained his report in a white paper being Exbt.11which cannot be sustained in the eye of law. Therefore, we are not inclined to accept the said Exbt.11.
(30) We also do not find that any case of motive or intention was proved by the prosecution against the accused person. (31) In the light of the aforesaid discussions/observations we hold that the prosecution has miserably failed to prove the guilt of the appellant under Section 302 of the Indian Penal Code and Section 323 of the Indian Penal Code.
(32) We therefore, allow this appeal and set aside the impugned judgment and order of conviction and sentence passed by the learned Trial Court and acquit the appellant of the said charges. (33) The appellant Krishnapada Mahato is in jail and he shall be released forthwith unless wanted in any other case. (34) Let the lower Court record be sent down to the Court below at once.
(Samapti Chatterjee, J) (Nishita Mhatre, J)