B. Bhattacharjee, J.

1. This instant appeal, filed by three appellants, has arisen out of the Judgment and Order dated 04.08.2023 and the Order of Sentence dated 07.08.2023 passed by the Sessions Judge, West Jaintia Hills, Jowai in Sessions Case No.99 of 2015 whereby all the appellants were convicted u/s 302 of the Indian Penal Code (IPC) and sentenced to undergo life imprisonment.

2. The fact of the case is that an FIR dated 16.11.1991 was lodged by PW-3 alleging that five persons from Lumkhudung village namely, (i) Shri. Tngen Muruh(Appellant No.1), (ii) Shri. Lowit Muruh, (iii) Shri. She Muruh(Appellant No.3), (iv) Shri. Tne Muruh(Appellant No.2) and (v) Shri. Kamai Muruh, murdered one Shri. Sada Muruh on 16.11.1991 at around 4 PM at Lumkhudung village. It was further alleged that Shri. Dal Ryngkhlem and the father of deceased Sada Muruh, who witnessed the assault and murder, were also assaulted by those accused persons. The FIR was lodged before the Officer-in-Charge of Ummulong Beat House and was received and forwarded to Jowai Police Station on 18.11.1991, whereupon, it was registered as Jowai P.S. Case No.166 (9) 1991 u/s 302/34 IPC. The case was, thereafter, taken up for investigation by SI Q.E. Pala.

3. Upon completion of the investigation, a charge-sheet being Chargesheet No.97/1994 dated 14.05.1994 u/s 302/34 IPC was filed against all the above named five accused persons before the Additional Deputy Commissioner, Jowai. On 22.05.1995, charge was framed against all the accused persons including the appellants who pleaded not guilty and claimed trial. It appears that PW-1 was examined on 06.08.2001 before the Additional Deputy Commissioner after more than six years of framing of the charge. Thereafter, evidence of PW-2 was recorded on 03.02.2022 by the Sessions Court, after more than twenty years of taking of evidence of PW-1. The reason for such inordinate and shocking delay primarily appears to be due to the non-appearance of the accused persons and transfer of the matter firstly, to the Fast Track Court, and after separation of judiciary from executive in the district of West Jaintia Hills, to the Court of Sessions Judge, Jowai. The prosecution examined 4 (four) witnesses and exhibited 2 (two) documents in support of its case. After the closure of the prosecution witnesses, statements of all the 3 appellants were recorded on 22.06.2023 u/s 313 CrPC. The appellants declined to adduce any defence witness and the matter was then taken up for final hearing.

4. It appears from the chargesheet that as many as 10 (ten) witnesses were originally listed as prosecution witnesses. However, only 4 (four) prosecution witnesses were examined during the course of the trial. Record reveals that statements of 3 (three) other witnesses were recorded to bring on record the fact of demise of 3 (three) prosecution witnesses namely, Yooka (Iooka) Muruh, Nihon Suting and Dal Ryngkhlem. The deposition of the investigating officer of the case was also not recorded during the course of the trial.

5. The trial court record reveals that the accused Shri. Kamai Muruh passed away on 11.08.2018 and the accused Shri. Lowit Muruh passed away sometime in the year 2018 leaving behind the three appellants herein to face the trial. The learned Trial Court after hearing the parties, by Judgment and Order dated 04.08.2023 convicted all the appellants u/s 302 IPC and by Order dated 07.08.2023 sentenced the them to undergo life imprisonment. Being aggrieved, the appellants have preferred the present appeal challenging their conviction and sentence.

6. Mr. S. Chakrawarty, learned Senior counsel assisted by Mr. E. Laloo, learned counsel appearing for the appellants submits that though PW-1 and PW-3 claimed to be eye-witnesses to the commission of the alleged crime, none of their names have been mentioned in the FIR as eye-witnesses. In fact, the FIR contained names of some other persons as eye-witnesses who were never examined at the trial. That apart, he submits that the versions of PW-1 and PW-3 are at total variance as to whether the victim was dragged or chased by the appellants to the alleged place of occurrence. He submits that the above factors indicate that none of the witnesses have disclosed the truth in their evidence and hence, conviction of the appellants on the basis of their testimony is not tenable in law.

7. The learned Senior counsel further submits that both the inquest report and the post-mortem report clearly reveal that the injuries to the skull of the victim were caused by a sharp instrument but there is nothing in the evidence of PW-1 and PW-3 that the appellants were carrying or have used any sharp weapon while allegedly assaulting the victim. He contends that the fact of non-recovery of any weapon from the alleged place of occurrence or from the possession of the appellants would go to show that the accused persons did not cause any injury which led to the death of the victim. The learned Senior counsel further submits that the inquest and the post-mortem conducted on 18.11.1991, after two days of alleged death of the victim on 16.11.1991, did not indicate any time of death of the victim and hence, the appellants cannot be held responsible for the death of the victim as the possibility of commission of the crime by other persons cannot be ruled out. He submits that the evidence on record reveals that the FIR was received and registered by the police on 18.11.1991 after two days of the alleged incident, but the delay has not been explained by any of the prosecution witnesses.

8. In addition to the above, the learned Senior counsel submits that the entire evidence on record do not project presence of any probable motive on the part of the appellants to commit the alleged crime. He submits that absence of motive coupled with unclear and contradictory evidence of the so-called eye-witnesses casts a serious doubt over the entire prosecution case. He contends that the evidence of PW-1 and PW-3 with regard to the assault and death of the victim does not find any support from the evidence of the medical witness and in such a situation, prays that the conviction and sentence of the appellants may be set aside and quashed. In support of his submission on the point of inconsistency of prosecution evidence with medical evidence, the learned Senior counsel has placed reliance on the decisions of the Apex Court in Ram Narain v. The State of Punjab (AIR 1975 SC 1727), Kartarey and ors. V. State of U.P (AIR 1976 SC 76) and Ishwar Singh v. The State of U.P (AIR 1976 SC 2423).

9. Mr. R. Gurung, learned GA, on the other hand, submits that the prosecution has proved its case beyond all reasonable doubt through direct, cogent and corroborated evidence. He submits that PW-1 and PW-3, who are eye-witnesses to the occurrence, in their deposition have clearly stated that the accused persons including the three appellants herein have assaulted the victim till he died on the spot. The evidence of PW-1 and PW-3 corroborated each other and is further supported by evidence of PW-4, the Doctor, who conducted post-mortem on the dead body. He submits that the evidence of prosecution witnesses stood unshaken in the cross-examination conducted on behalf of the appellants. According to the learned GA, the prosecution case is supported by credible and reliable eyewitness testimony and as such, the absence of a proven means rea in the case has no significance. The learned GA submits that the evidence of PW-1 and PW-3 cannot be disbelieved or discarded merely on the ground that they are related to each other and to the deceased as sister and brother. He submits that there is no proposition in law that relatives are to be treated as unreliable witnesses. In support of his contention, the learned GA places reliance on the decisions of Harbans Kaur & anr v. State of Haryana (2005) 9 SCC 195 and Yogesh Singh v. Mahabeer Singh & ors (2017) 11 SCC 195. In addition, the learned GA submits that no motive to falsely implicate the appellants has been suggested by the defence, and, hence, there should not be any hesitation in accepting the testimony of PW-1 and PW-3 to support the conviction of the appellants.

10. The learned GA further submits that non-examination of a witness named in the FIR cannot be a ground for discarding the prosecution case. He submits that there is no law which mandates that the names of all the witnesses, particularly the eye-witnesses, should be stated in the FIR. He contends that even non-examination of the Investigating Officer (IO) cannot be a ground for rejecting the prosecution case if other available evidence is sufficient and trustworthy. By referring to Section 134 of the Indian Evidence Act, 1872, the learned GA submits that it is the merit of the statement of a particular witness and not the number of witnesses which matters in establishing a criminal case. He contends that in the instant matter, the evidence of PW-1 and PW-3 read together with testimony of PW-4 makes out a clear case in favour of the prosecution and hence, there is no infirmity or illegality in the conviction and sentence of the appellants. The decisions of State of M.P. v. Mansingh, (2003) 10 SCC 414 and Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627 are pressed into service in support of the above contention.

11. The learned GA also contends that the appellants were confronted with specific incriminating evidence in their respective statements recorded u/s 313 CrPC, but none of them offered any explanation. They simply responded by flat denial and did not avail the opportunity to explain their version of the incident. He, therefore, submits that the evidence of the eye- witnesses which supports the case of the prosecution can be safely used against the appellants for rendering conviction. To buttress his argument, the learned GA places reliance on the decision of Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257. He submits that the evidence on record is sufficient to establish that the appellants acted in concert and caused injuries on vital parts of the deceased with intention/knowledge that they were likely to cause death. He, thus, submits that the trial court was right in convicting the appellants u/s 302 IPC and sentencing them to undergo imprisonment for life. He submits that there is no merit in this appeal and the same is liable to be dismissed.

12. We have heard learned counsels appearing for the parties. Also perused the materials available on record.

13. PW-1 in her deposition stated that the deceased, Sada Muruh, was her younger brother who died on 16.11.1991. He was murdered by all the accused persons and she saw the occurrence herself which took place around 6:30 PM to 7:00 PM on the day of incident at the paddy field belonging to her mother Ka Kwen Muruh at Lum Khudung. Immediately after the incident she asked the accused persons as to why they killed her younger brother who was not mentally sound and why they did not inform her and her family before killing him, to which the accused person replied that they had already informed her family members which fact was not true. She stated that she did not know the reason why they killed her younger brother.

In her cross-examination, PW-1 stated that she reached home on 16.11.1991 at about 6:00 PM. On reaching home, she took her meal and got ready for bed. At that point of time the accused persons came and dragged her younger brother (Sada Muruh) to the paddy field of her mother in presence of her other brother (PW-3), mother and father. The time when the accused persons dragged her younger brother, it was around 7:00 PM. They did nothing to follow the accused persons but asked them not to beat Sada Muruh. She stated that the distance of the paddy field from home was about 100 meters and during the dragging process, the accused persons also manhandled her other brother and assaulted her father. She stated that they did not inform the headman at that point of time but made hue and cry to which none came to the rescue. PW-1 further stated that the deceased Sada Muruh was left in the paddy field from 16.11.1991 till 18.11.1991 as in ‘Niamtre’, her religious practice, it was not permissible to carry home the body of a person in case of an unnatural death. She admitted that her brother U Kaia Muruh (PW-3) reported the matter to the headman of Lum Khudung on 18.11.1991 and thereafter, a complaint was lodged with the police. She did not know who first attacked the deceased. She stated that in her statement before the police, she mentioned that the incident took place at 4:00 PM, however, mention of timing of occurrence before the court is correct. She admitted that she never stated before the police that the accused persons dragged the deceased from their residence on the date of occurrence and that her other brother and father was assaulted and manhandled by the accused persons. She stated that her deceased brother was a lunatic, needed hospitalisation and was in mental jail, Shillong. She was not present on 18.11.1991 when the police came to enquire about the incident. She was at home on 16.11.1991 at 6:30 PM and went to report the matter to the police on 17.11.1991. The deceased was not taken to hospital for post-mortem.

14. PW-2 in his deposition stated that in the year 1991, he was posted at the Ummulong Beat House as the In-charge. The case was investigated by SI Q.E. Pala and on his transfer, PW-2 was directed by the then SP Jowai, to file charge-sheet in the case. He did not know the accused persons in the case.

15. PW-3 in his evidence before the court stated that the deceased was his brother. He did not remember the date, month and year of the incident. On the day of the incident, he was at home with his parents and his deceased brother. At around 6:00 PM, one Shri. Dal Ryngkhlem, visited his house and left after sometime. Thereafter, his deceased brother went out of the house and he saw five persons chasing his brother and caught him at the paddy field and started assaulting him. On seeing his brother being assaulted, he along with his parents rushed to the paddy field to stop those five persons but they continued assaulting till his brother died on the spot. He named all the five persons which included the names of the appellants herein. He stated that all the accused persons were his cousin brothers. After assaulting his brother, all the accused persons fled away from the place of occurrence. He along with his elder sister went to Ummulong Beat House to report the matter to the police and he signed the FIR after being typed. He exhibited the FIR as Exhibit-1. He stated that the dead body was guarded till the arrival of the police after two days of the incident. Police did some enquiry at the place of occurrence.

In cross-examination, PW-3 stated that he informed the police at about 8:00 PM. He stated that his statement before the police that he was informed by somebody about the incident is not correct. He stated that he and his family members just stood at the place of occurrence requesting the accused persons not to assault the deceased as they all were scared. At the place of occurrence, it was only he, his father, mother and two sisters namely, Iong Muruh and Dina Muruh, were present. The dead body was lying at the place of occurrence for two days from the date of incident. He affirmed that all the five accused persons together assaulted his victim brother.

16. PW-4, the doctor, in his testimony stated that he conducted the post mortem examination of the dead body of victim Sada Muruh, aged 23years, on 18.11.1991 at 2:00 PM at the spot/place of occurrence after receiving a requisition from the police. After examination of the dead body, he found that i) The head was broken, the membrane ruptured, ii) Lacerated injury on the chin and the chin was broken, iii) Lower lips disfigured, iv) Incised wound on the left supra temporal region measuring 3 x 2 cms and v) Upper jaw and teeth broken. According to his opinion, the cause of death was due to haemorrhage resulting from the above injuries. He exhibited the post mortem report prepared by him as Exhibit-2.

The cross-examination of PW-4 was declined by the defence.

17. Before proceeding further with an analysis of the prosecution evidence and materials on record, it would be appropriate to take note of the various authorities cited by both the parties in support of their respective contentions.

18. In Ram Narayan (supra) at para 14, it was held by the Apex Court that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. If the evidence of the witness for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. It was further held that in a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with a weapon with which and in the manner in which they are alleged to have been caused.

19. In Kartarey and others (supra) and Ishwar Singh (supra), the Apex Court held that it is the duty of the prosecution, and no less of the court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.

20. In Harbans Kaur (supra), it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. Further, in Yogesh Singh (supra), the Apex Court after survey of various judicial pronouncements, observed that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased.

21. The Apex Court in Mansingh (supra) held that evidence of the person whose name did not figure in the FIR as a witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eye-witnesses, should be indicated in the FIR. Mere nonmention of the name of an eye-witness does not render the prosecution version fragile. Further, in Rizwan Khan (supra), it was held that the testimony of the official witnesses cannot be rejected on the ground of noncorroboration by independent witness. Examination of independent witness is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case.

22. In Ramnaresh (supra), the Apex Court held that the obligation to put material evidence to the accused u/s 313 CrPC is upon the Court. One of the main objects of recording of a statement under this provision is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequence in law must follow. Where the accused takes benefit of this opportunity, then his statement made u/s 313 CrPC, insofar as it supports the case of prosecution can be used against him for rendering conviction even under the latter, he faces the consequence of law.

23. Keeping in mind the aforesaid propositions of law relied on by the parties, we shall now proceed to analyse the evidence adduced by the prosecution and also the materials on record.

24. Perusal of the evidence of PW-1 and PW-3 makes it clear that no weapon was used in the commission of the crime as none of them made any statement that the accused persons assaulted the victim with any instrument or weapon. PW-3 stated that the accused persons continued assaulting till the victim died on the spot, but he did not explicitly tell as to what kind of injury was caused to the victim which resulted in death. None of the eye-witnesses stated as to how they came to the conclusion that the victim died on the spot after being assaulted by the accused persons as there is nothing in their evidence to show that they undertook pulse test or checked breathing of the victim before coming to such conclusion. PW-1 and PW-3 did not say that they saw the victim was bleeding because of the injuries inflicted on him by the accused persons. Therefore, it remains unclear as to what type of injuries were caused to the victim by the assault of the accused persons.

25. PW-3 also stated that after assaulting the victim all the accused persons fled away from the place of occurrence and he along with his elder sister went to Ummulong Beat House to report the matter to the police and thereafter, signed the FIR after it was typed. In his cross-examination he confirmed that he informed the police about the incident at about 8:00 PM. The date mentioned in the FIR is 16.11.1991. However, there is nothing on record to show that the investigation of the case was taken up immediately thereafter. On the contrary, the endorsement made on the FIR and the registration of the case by the police makes it clear that the FIR was received on 18.11.1991 i.e. two days after the incident. The evidence of PW-1 reveals that the police arrived at the place of occurrence only on 18.11.1991 to enquire about the death of the victim. It is, thus, certain that no investigation was taken up in the matter before 18.11.1991.

26. The testimony of PW-1 and PW-3 further reveal that the dead body of the victim was left in the place of occurrence from 16.11.1991 to 18.11.1991 because of the religious practice followed by the victim’s family (known as Niamtre) which does not permit the dead body to be carried home in case of an unnatural death. PW-3 in his evidence stated that the dead body was guarded till the arrival of the police after two days of the incident. There is nothing in evidence to show that the headman or any other village authorities was informed immediately after the incident. There is also no details available as to who guarded the dead body at the place of occurrence till the police arrived at the spot.

27. The evidence of PW-4, the Doctor who conducted the post-mortem examination of the dead body indicates presence of serious injuries. According to him, the victim’s head was broken with membrane ruptured, lacerated injury on the chin and the chin was broken, lower lips disfigured, incised wound on the left supra temporal region measuring 3x2 cms, upper jaw and six teeth broken. He opined that the death was caused due to haemorrhage resulting from the above injuries. Although PW-4 had given details of the injuries, his evidence and the post-mortem report is totally silent about the approximate time of death of the victim. There is no clarity as to whether the victim died on 16.11.1991 or on 17.11.1991 or on 18.11.1991. The medical evidence adduced in the matter does not in any manner indicate whether injuries sustained by the victim could have caused by bare hand or not. In absence of any such clarification, it is not possible to comprehend that the death of the victim resulted from the assault caused by the accused persons.

28. In addition to the foregoing, it is noteworthy to this Court that, despite the disclosure of multiple serious external injuries on the body of the deceased, there is no evidence on record indicating any corresponding signs of bleeding. The evidence adduced by the prosecution does not throw any light as to whether the injuries received by the victim could have been inflicted without causing any bleeding. Furthermore, there is an absence of material on record to establish that such injuries could have been inflicted by the use of bare hands.

29. There is no clarity as to whether the FIR was filed on 16.11.1991 as stated by PW-3 as the endorsement made on the FIR indicates that it was received on 18.11.1991 by the police. If the claim of PW-3 is correct, then a question would arise why police visited the place of occurrence only on 18.11.1991, after a gap of two days. The prosecution also has not made any attempt to disclose what happened during the intervening period starting from the time of occurrence on 16.11.1991 till the arrival of the police to the place of occurrence on 18.11.1991. There are no details available as to which manner the dead body was lying on the spot and who were the persons guarding the dead body. The learned Senior counsel for the appellants pointed out that an inquest report was prepared by the police during the course of investigation, however, there appears that no such report was ever exhibited before the trial court. Moreover, the testimony of PW-4 indicates that he conducted post-mortem examination of the dead body in the place of occurrence, but the post-mortem report and the evidence do not reveal any detail about the place of occurrence. The medical evidence does not disclose that the dead body was found lying in a pool of blood or there was bloodstain on the clothes of the victim. There is also no indication that there was any sign of bloodstains in and around the place of occurrence All the above factors cause a serious doubt over the prosecution case.

30. According to the FIR, the incident took place on 16.11.1991 at about 4:00 PM. As per the evidence of the eye-witnesses, the time of incident was 6:30-7:00 PM on the said date. The eye-witnesses claim of ‘death of the victim on the spot’ forms the core part of the prosecution case. However, medical evidence does not support any such claim as the time of death has nowhere been mentioned. The nature and the severity of the injuries described in the post-mortem report does not suggest that such injuries could have been inflicted by bare hands without use of any instrument or weapon. The eye witness account does not disclose use of any weapon or instrument by the appellants. There is also no assertion by the prosecution that the appellants used any weapon or object to cause fatal injury to the victim. Incised wound indicated in the post mortem report could not have been caused without use of any sharp object. Human head cannot be broken by strike of empty hand. If any attempt is made to break head by hand, the same would definitely cause injury to the hand and fist of the assailant as the head is significantly harder than the bones of hand. In the present matter, there is no evidence of presence of any injury on the hands of any of the appellants. The medical evidence in the present case has created a gross, irreconcilable contradiction that renders the eye witness account wholly improbable or impossible insofar as the cause of death of the victim is concerned. The statement of the eye witnesses, therefore, cannot be blindly accepted to sustain conviction of the appellants.

31. In a case of present nature where prosecution allegation is that the victim died on the spot because of the assault by the accused persons, a duty is cast on the prosecution to prove the time of death of the victim in order to relate it with the offence alleged. It is also incumbent upon the prosecution to establish the manner in which the injuries on the victim could have been caused, whether by use of any weapon or not. When eye witness account is silent with regard to the injuries, the same has to be proved by inviting opinion of medical witness. In the present case, it is impossible to say with certainty that the injuries were caused by the assault of the appellants. Hence, the conviction of the appellants u/s 302 IPC cannot be sustained.

32. We have also perused the statements of the appellants recorded u/s 313 CrPC by the trial court. Although the appellants have not offered any detailed explanation except issuing a flat denial to the circumstances put forward before them, there is no self-incriminating statement made by them to lend support to the prosecution case.

33. The authorities cited by the learned GA do not help the prosecution in the present appeal. The version of the eyewitnesses is not sufficient to bring home a charge of murder against the appellants. The discussions made in the foregoing paragraph has no bearing with the propositions of law sought to be relied on by the learned GA.

34. The failure on the part of the prosecution to bring on record the probable time of death of the victim and to connect the injuries on the dead body with the eye-witnesses account casts a serious doubt over the prosecution case. The prosecution evidence that the dead body was lying in the place of occurrence for two days because of the religious practice of the victim’s family does not stand to reason non-arrival of the investigating authorities to the crime scene immediately after the incident and nonproviding of instant medical attention to the victim. Furthermore, nonrecovery of any weapon or object from the place of occurrence by the investigating authority and absence of blood stains on the crime scene creates a grave doubt over the prosecution version of the matter. In the absence of any legal proof that the appellants had committed the offence, this Court has no option but to give benefit of doubt to the appellants.

35. Resultantly, this criminal appeal succeeds. The impugned Judgment and Order dated 04.08.2023 and the Order of Sentence dated 07.08.2023 passed by the Sessions Judge, West Jaintia Hills, Jowai in Sessions Case No.99 of 2015 is hereby set aside and quashed. The appellants are set at liberty forthwith if not required in any other case.

36. This criminal appeal stands allowed.

37. Let an authenticated copy of this judgment and order be furnished to the respective parties immediately.