The prosecution must prove beyond reasonable doubt the involvement of the accused in the crime, and if the evidence leaves room for skepticism about the veracity of the testimonies of the prosecution witnesses, the accused may be acquitted.

JUDGMENT

Debangsu Basak, J. - The appeal was directed against the judgment and order of acquittal dated November 28, 2019 passed by the learned Additional District and Sessions Judge, Fast Track Court, Rampurhat, Birbhum in Sessions Trial No. 44/ September, 2018 arising out of Case No. 77 of 2018.

2. By the impugned judgement and order the respondents Nos 2 to 9 were acquitted of the charges under Sections 325/304/149 of the Indian Penal Code, 1860.

3. Learned Advocate appearing for the appellant submitted that, the prosecution examined 5 witnesses at the trial. Out of the 5 witnesses, 2 were injured eyewitnesses. He submitted that, some persons received injuries in the incident and one person died.

4. Learned advocate appearing for the appellants submitted that, PWs 1, 2 and 5 saw the incident of assault on the victims. According to him, the prosecution witnesses established beyond reasonable doubt the involvement of the respondent Nos. 2 to 9 in the crime.

5. Referring to the Post Mortem Report, learned advocate appearing for the appellant submitted that, such Post Mortem Report was marked as an Exhibit without any objection on the part of the respondent Nos. 2 to 9. The Post Mortem Report established that the person concerned suffered injuries. The injuries noted were the cause of death. PWs 1 and 2 identified the respondent Nos. 2 to 9 as the persons involved in the assault on such victim. The respondent Nos. 2 to 9 are more than 5 in number. Therefore, the respondent Nos. 2 to 9 were guilty of culpable homicide not amounting to murder. In support of such contention, he relied upon 1993 Supp (2) Supreme Court Cases 356 (Sarman And Others Vs. State of M.P).

6. Learned advocate appearing for the appellant submitted that, non-examination of the post mortem doctor was not fatal to the case of the prosecution. He submitted that, the genuineness and authenticity of the Post Mortem Report was proved and should be treated as valid evidence under Section 294 of the Criminal Procedure Code. The Post Mortem Report was tendered in evidence and marked as Exhibit. The respondent Nos. 2 to 9 did not object to the tender of the Post Mortem Report in evidence.

7. Since the Post Mortem Report established that, the victim died out of the injuries suffered, and since the prosecution witnesses established that the respondent Nos. 2 to 9 were involved in the assault, according to him, the prosecution established beyond reasonable doubt the commission of the crime of culpable homicide not amounting to murder by the respondent Nos. 2 to 9.

8. Learned advocate appearing for the appellant submitted that, the respondent Nos. 2 to 9 are to be held guilty under Section 394 Part II of the Indian Penal Code, 1860.

9. Learned advocate appearing for the State submitted that, the State did not prefer any appeal against the impugned judgement and order of acquittal.

10. Learned advocate appearing for the respondent Nos. 2 to 8 submitted that, the appeal was directed against an order of acquittal. According to him, when two views are possible in the facts and circumstances of a case, the view taken by the learned Trial Judge should not be upset particularly when, the impugned judgement and order was one of acquittal. In any event, when two views were possible, the one which favoured the accused should be adopted.

11. Referring to the oral testimony of PW 1, learned advocate appearing for the respondent Nos. 2 to 8 contended that, PW 1 cannot be said to be an eyewitness to the incident. He submitted that, 3 persons were injured. One of such persons being Fatick Konai was not examined by the prosecution.

12. Referring to PW 2 and his testimony, learned advocate appearing for the respondent Nos. 2 to 8 submitted that, although, PW 2 claimed himself to be injured, injury report of PW 2 was not tendered in evidence. Therefore, the testimony of PW 2 that, he was an injured eyewitness, is not reliable. Once a portion of testimony is found to be unreliable the other portion of