JUDGMENT Raghubar Dayal, J. - Zatar Husain and his son Zafar Mahmud alias Munne and his servant Gaya Din appeal against their conviction Under Sections 302 and 307 read with Section 34, I.P.C. Zafar Husain was sentenced to death for the former offence and the other Appellants were sentenced to life imprisonment. The learned Sessions Judge has referred the case for the confirmation of the death sentence awarded to Zafar Husain. 2. The Appellants and Singhai deceased resided in village Seondha, police station Pura-Mufti, district Allahabad. It is alleged that these three Appellants together with one Maqsood, another son of Zafar Husain, went to the house of Singhai at about 9 p.m. on 25-7-1956, that Zafar Husain and his son were armed wish a spear and Gaya Din was armed with a lathi that at Zafar Husain's instigation Munne struck a spear at Singhai's abdomen, that Singhai who was sitting on a (sic) got up and proceeded to the verandah on the west, fell down there and Zafar Husain then struck another spear blow at his chest. Mirhai, son of Singhai, who was siting on another cot to the south of Singhai's cot, rushed to save his father but was given two spear blows by Maqsood. He also fell down. The Appellants then (sic) away southwards from which direction they had come in the beginning. They were said to be recognized in the light of a lantern which was hanging from the eaves of the Dalan. 3. The motive for the alleged conduct of the accused is said to be Zafar Husain's enmity with Singhai who had given evidence against him and his men in a murder case in which two relations of Dr. Naim and Chirku, son of Chaitu relation of Singhai were murdered. Singhai gave evidence twice in that case, once against the main body of the accused and second time against Zafar Husain who was not on trial, due to alleged absconding, in the first proceedings. After the arrest of Zafar Husain and during the pendency of the case against him, Munne, Gaya Din and two other persons are alleged to have raided the house of Singhai and failing to strike him killed his dog and held out the threats of breaking his hands and feet in case he gave evidence in the sessions court. This incident took place on 11-1-1954. This incident took place on 11-1-1954. A report was lodged by Singhai about this incident. Zafar Husain was ultimately acquitted in June, 1954. 4. The report of this incident was lodged by Mirhai at police station Puramufti at 6-40 a.m. on 26-7-1955 according to the prosecution. This time of lodging the report is disputed for the accused Appellants. The version of the incident in this report is different from the version given in court by the prosecution witnesses. Some of those differences have a material bearing on the appreciation of the case against the accused Appellants and would be discussed later. 5. Sub-Inspector, Mahendra Pratap, station officer Puramufti, investigated the case and submitted a challan against the three Appellants. He did not arrest Maqsood, the fourth person accused of the offence in the first information report. This prompted the complainant Mirhai to file a complaint on 4-10-1955, in the court of the Judicial Magistrate, Allahabad. It was alleged that Maqsood, who was present in the village, was not arrested by the police. It was also mentioned in this complaint that two of the witnesses mentioned in the first information report, namely Bhairo and Durjan, had colluded with the accused persons due to their influence and that the complainant did not hope to get any justice from the police concerned. It was also alleged that the police was in sympathy with the accused persons, had spoiled the case and did not arrest Maqsood contending that he was not the principal accused. 6. On 23-9-1955, prior to the lodging of the complaint, identification proceedings took place in jail. The three Appellants were put up for identification by Durjan, Bhairo and Smt. Mohini, mother of Singhai deceased. Bhairo and Durjan failed to identify any of the accused and each of them picked up on wrong person. This inability of Bhairo and Durjan seems to have led to the accusation of their collusion with the accused. The complaint did not give out fully, as appears from later events, why Maqsood was not challaned. There cropped up a dispute whether the person in the village was Maqsood or another son of Zafar Husain Ma-sood by name. It is admitted that one of--Zafar Husain's sons had gone to Pakistan, sometime before the incident in suit had taken place. The complaint did not give out fully, as appears from later events, why Maqsood was not challaned. There cropped up a dispute whether the person in the village was Maqsood or another son of Zafar Husain Ma-sood by name. It is admitted that one of--Zafar Husain's sons had gone to Pakistan, sometime before the incident in suit had taken place. The case for the accused is that that boy, who had gone to Pakistan, was Maqsood and the boy in the village was Masood. It was probably due to some difficulty in fixing up the identity that the police did not challan the boy in the village and it may also be mentioned that the complainant failed to establish before the committing Magistrate in connection with the proceedings on his complaint that the boy in the village, who did make his appearance, was Maqsood. 7. The accused Appellants denied that they had murdered Singhai or caused injuries to Mindhai. Zafar Husain alleges that this case has been instituted against him, his sons and servant on account of the influence of Dr. Nairn with whom he had bitter enmity. Munney and Gaya Din account their implication due to their connection with Zafar Husain. It was suggested by Zafar Husain in his statement before the committing Magistrate that the murderer was Shiv Mohan, son-in law of Chaitu prosecution witness, as Shiv Mohan was turned out of the village by Singhai. Shiv Mohan was the servant of Zafar Husain. 8. There is no doubt that Singhai and Mirhai were struck with spears on a night between the 25th and 26th of July, 1955, and that Singhai died due to those injuries. The question is whether the Appellants were responsible for causing those injuries. The case against them rests on the testimony of Mirhai, P.W. 1, his grandmother Smt. Mohini, P.W. 5, Chaitu uncle of Singhai deceased P.W. 6 and Ram Khilawan P. W. 2. 9. The learned Sessions Judge his disbelieved Kara Khilawan, who was a chance witness for good reasons. It is not necessary to discuss his statement. 10. The two portions of Chaitu's house adjoin the two portions of Singhai's house. Chaitu's portions are on the north. There is a neem tree in front of Chaitu's house. It seems to be at the corner of the house of Singhai. It is not necessary to discuss his statement. 10. The two portions of Chaitu's house adjoin the two portions of Singhai's house. Chaitu's portions are on the north. There is a neem tree in front of Chaitu's house. It seems to be at the corner of the house of Singhai. Chaitu is now alleged to be sitting with Mirhai on the cot opposite the cot of Singhai; the two cots were between the doors of the two houses of Singhai and would, therefore, be at some distance to the south of the aforesaid neem tree. Chaitu has deposed as an eye-witness. His statement is however to be ignored as he stated before the investigating officer that he was in front of his house at the time of this incident and reached the spot after the assailants had fled away. Similar was the statement of Smt. Mohini before the committing Magistrate where she deposed that Chaitu was sitting at his door. The learned Sessions Judge has got over this difficulty of Chaitu being an eye witness by holding that the sub-Inspector was hostile to the prosecution and did not carry out the investigation properly and did not record correct statements of the witnesses made to him. We do not see any justification for this finding. The sub-inspector was not directly questioned in connection with any suggestion that he had colluded with the accused and was not discharging his duty honestly. The only conduct of the sub-inspector which has led the court below to the aforesaid opinion is that he did not send the blood stained earth to the Chemical Examiner for examination, that he did not show in the site plan the place where a lantern lay at the time of his focal inspection and that he had not concluded the investigation concerning the participation of Maqsood. No reference-has been made by the learned Sessions Judge to the explanation of the sub-inspector about non-sending of the blood stained earth to the Chemical Examiner. The explanation was that there was a Government notification that if direct witness's were available and the scene of occurrence was not disputed and the comparison was not to be made with other blood the blood stained articles should not be sent for examination. The explanation was that there was a Government notification that if direct witness's were available and the scene of occurrence was not disputed and the comparison was not to be made with other blood the blood stained articles should not be sent for examination. The sub-inspector when questioned on those lines by the District Government counsel also made a pertinent statement that the public prosecutor and the Deputy Superintendent of Police did not instruct him to send these articles to the Chemical Examiner. We do not consider the non-sending of the blood stained earth to the Chemical Examiner due to any attempt to wreck the prosecution case against the accused. 11. The position of the lantern according to the prosecution, is said to be the leaves of the verandah. The sub-inspector was pointed to a lantern which lay on the ground. His explanation for not showing its position in the site plan is that he did not consider it necessary. The matter was not pursued for the prosecution to get it clearly from him that the position where he had seen the lantern was such that its light could have been available to the witnesses at the spot for recognising the assailants. Such and more glaring omissions are often made by investigating officers and usually the complaint about such omissions comes from the accused to suggest that the investigating officer did not do the right thing in order to get strength to his case as the omitted facts would have gone in their favour. 12. Lastly the non-conclusion of the investigation against Maqsood cannot be said to be due to any attempt to provide an argument to the accused that the person in the village was not Maqsood but had gone to Pakistan and, therefore, could not have taken part in this incident. The finding of the Magistrate is in favour of the accused. The conduct of the prosecution witnesses, who were confronted with two photographs, one of Masood and another of Maqsood, attached to their respective applications to the Board of High School and Intermediate examination in 1953 and 1954 respectively, in not recognising those photos to be of Masood and Maqsood respectively betrays the weakness of the prosecution case and the honesty of their statements. We have seen the two photographs. We have seen the two photographs. They are not so similar as to make it impossible for co-villagers who knew them well not to distinguish as to which is the photo of Masood and which is of Maqsood. The photos are absolutely dissimilar and one knowing the actual persons should not have had any difficulty in saying which photo was of which person. The failure of the investigating officer to conclude the investigation finally against Maqsood, as has been just mentioned, can be with a view not to injure the prosecution case by submitting a final report that the accusation of Maqsood was a false accusation and could not have been in order to provide an argument to the accused to show that the prosecution case against alleged Maqsood was false. Anyway this fact also does not support the observations of the learned Sessions Judge that the investigating officer has been proved to have acted mala fide during the investigation and that, therefore, in view of Baladin's case 1956 Cr.L.J. 345 the record of the statement of the prosecution witnesses should not be given the usual weight in appreciating the evidence of those prosecution witnesses whose present statements be at variance with their statements before the investigating officer. 13. After ignoring Chaitu's and Ram Khilawan's statements there remain only two witnesses, Mirhai and Mohini for consideration. There is no doubt that Mirhai at some stage of the incident could have had occasion to see the assailants and that Mohini too might have been in such a position even if she came out of the house on hearing the cries which must emanate when both Singhai and Mirhai got the first thrust with the spear. We are not prepared to rely on their statements in view of the probabilities of the case and certain circumstances which affect the correctness of the time of the incident and the edging of the report. 14. The prosecution case is that there were two cots between the doors of two portions of Singhai's house. Singhai was sitting on a northern cot and Chaitu and Mirhai were sitting on the southern cot. Singhai was facing north. Chaitu and Mirhai were facing south. Mohini was sitting between the two cots. Why they were sitting in such position when the sitting was an informal sitting after meals, is not clear from the record. Singhai was sitting on a northern cot and Chaitu and Mirhai were sitting on the southern cot. Singhai was facing north. Chaitu and Mirhai were facing south. Mohini was sitting between the two cots. Why they were sitting in such position when the sitting was an informal sitting after meals, is not clear from the record. The accused are said to have reached the spot from the south in which direction Chaitu and Mirhai were facing. Their approach should have been observed by these two persons some time before they could actually reach Mirhai's cot which was the first to pass by then in order to reach Singhai. Chaitu and Mirhai did not do so. It is suggested that due to the lantern light near the spot these two persons could not have seen who was approaching in the dark. They may not be able to see the persons going at some distance but they should have observed their approach and should have been able to make out who they were when they were a few paces south to their cot. This they did not do. If they had done so their conduct would have been different. They would either have challenged them ro taken to flight after observing that their deadly enemies were armed with deadly weapons. On the other hand Mirhai would like us to believe that these persons had passed his cot, reached the open space between the two cots and it was when after reaching there Zafar Husain shouted that they could see the assailants. If these persons, Chaitu and Mirhai, had not been able to notice the arrival of their enemies due to engrossing conversation there is no reason why the accused should not have struck Mirhai and Singhai simultaneously. There is no question of Singhai's escaping if the attack was first made on Mirhai who was the first to meet them on their arrival. It appears that the prosecution version has been the result of an attempt to show that the blood stains on both the places, i.e. under the neem tree and in the western Verandah, were due to the blood flowing from Singhai's body. The suggestion for the accused is that the blood under neem tree was due to the Singhai's injuries and in the verandah was due to Mirhai's injuries. There is no reason why Mirhai's injuries should not bleed. The suggestion for the accused is that the blood under neem tree was due to the Singhai's injuries and in the verandah was due to Mirhai's injuries. There is no reason why Mirhai's injuries should not bleed. The suggestion finds support from two facts, one is the absence of any blood stains between the neem tree and the Dalan as would have been expected if Singhai would have walked from his cot to the Dalan, a distance of about ten paces. The other is that Chaitu deposes that when Munne had struck a spear at Singhai's abdomen, Singhai pressing his wound stood up but he could not and fell down in the Dalan. If Singhai could not stand up how could he reach the Dalan after covering a distance of ten paces. It appears to be the correct thing that Singhai could not leave his cot after getting the first blow. It would be quite natural that Mirhai whose cot was nearer the door reached the Dalan when he was struck and that the blood in the Dalan was due to Mirhai's injury. 15. Reference now be made to the differences in the prosecution case in court and as mentioned in the first information report. The first point to observe is that no mention is made in the first information report about the presence of cots. There seems to be no reason why no mention was made of the cot in the report. The other is that the version in the report could mean that these persons were sitting under the neem tree at about 9 o'clock after taking their meal shortly before. The present version is that the meal was taken at about sun set. It is left for us to imagine that they had been sitting under the neem tree from sun set till the assault which even according to the prosecution case took place two hours and a half later. 16. The case put up in court seems to be built up as a result of the observations of the doctor at the past mortem examination and the result of the investigation. The doctor found that the stomach contained semi digested food about one lb. in weight and that some food matter had come out of the stomach. He has deposed that food would come out of the stomach after about three hours. The doctor found that the stomach contained semi digested food about one lb. in weight and that some food matter had come out of the stomach. He has deposed that food would come out of the stomach after about three hours. It was, therefore, necessary to say that the meal had been taken at about sun set. 17. The investigating officer found blood stained cot on the spot. He took it in possession. The prosecution version in court must, therefore, disclose that Singhai was actually sitting on the cot at the time of the incident. The time of the incident is said to be 9 o'clock. The recognition of the accused is said to be in the lantern light. The witnesses admitted that there was no moon light at the time of the incident. The moon set that night at 10.38 p.m. It is clear, therefore, that the incident could not have taken place before 10.38 p.m. Mirhai admits that a lantern used to remain burning at his place till 10 p.m. when they used to go to sleep. It was, therefore, that the time of the incident had to be fixed at 9 p.m. or an hour prior to 10 o'clock. If the incident did not take place when the moon was up it would not take place when the lantern was burning. The learned Sessions Judge observed in this connection: In my opinion it is a conjectural hypothesis, which does not take into account that the moon on the sixth day does not go high up in the sky; it is also not irrational to assume that the little streak of the moon may have been covered by a patch of cloud or by the trees. 18. No witness deposes that it was cloudy at the time or that trees obstructed moonlight. Mirhai states 'it was a moonless night' and also 'the aky was clear when the incident had taken place.' Mohini stated 'the neem shade was falling on the cots. It was a moonless time when the occurrence took place.' The observations of the learned Sessions Judge, we are constrained to say, are merely speculative and against what the prosecution witnesses deposed. It was a moonless time when the occurrence took place.' The observations of the learned Sessions Judge, we are constrained to say, are merely speculative and against what the prosecution witnesses deposed. If there was no light of the lantern and there was no moon light the witnesses could not have recognised the assailants and this attempt to give an earlier time to the incident would go against the veracity of the prosecution witnesses. 19. According to the version in the first information report Zafar Husain just instigated his companions to assault Singhai and Singhai was said to have received only one spear blow from Munne. There was no mention of second spear thrust from Zafar Husain as is now alleged in court. This omission of mentioning a second spear in jury on Singhai indicates that whoever was responsible for the dictation of the report was not in a position to see the second spear injury on the person of Singhai. It is urged for the State that Mirhai must have seen the two injuries of Singhai and the omission to mention their existence must have been due to his state of mind. When so many other facts have been mentioned in the first information report the important part played by Zafar Husain in the incident would not have been likely missed whatever the condition of Mirhai was at the time of the lodging of the report. The omission seems to be due to the ignorance of Mirhai or his advisors about the second injury and such ignorance could be possible. The two injuries were on the chest and abdomen from which lot of blood had come out. The incident took place in the dark after 10:38 p.m. After Mirhai himself had received injuries he just failed to notice that really there were two injuries on Singhai. He simply noticed that there was blood coming and there must have been an injury. This will also tend to support that possibly there was no lantern light available or that nobody was keen enough to really observe the injuries. 20. He simply noticed that there was blood coming and there must have been an injury. This will also tend to support that possibly there was no lantern light available or that nobody was keen enough to really observe the injuries. 20. The test of the ability of Mirhai, the injured person, to recognise the assailants is proved from the fact that he could have been in the best position to recognise his own assailant, that he recognised his assailant to be Maqsood and that at this stage it cannot be said with firmness that his assailant must have been Maqsood. Witnesses failed in recognising the photos oi Masood and Maqsood. 21. The first information report is said to have been lodged at 6-40 a.m. We have reasons to doubt the correctness of the time. Mirhai is sent to the hospital at Allahabad just after the report had been taken down. He would, therefore, leave for the hospital at 7 a m. if the report was actually lodged at 6-40 a.m. Mirhai has no reason to make any wrong statement even though, as urged, the police had reasons to make wrong entries. According to Mirhai he reached the hospital shortly before he was examined by the doctor. The doctor examined him at 3-45 p.m. He travelled from police station Puramufti to Allahabad hospital on an ekka. The ekka did not stop in the way and the road between the two places is Grand Trunk Road. He should not have normally taken more than two hours to cover a distance of 12 miles between Puramufti and Allahabad. No suggestion is made against the correctness of the time noted by the doctor for the examination of Mirhai. It means, therefore, that Mirhai probably left the police station at about 1 p.m. on the 26th of July and not at about 7 a.m. that day. There is an interval of six hours which remains unexplained. 22. There is a similar unexplained period of time when we consider the movments of Mukhtar Ahmad constable, who escorted the corpse from village Seondha to the mortuary Allahabad. He brought it via the thana. He leaves the village according to the evidence at about 1-30 p.m. reaches police station at 9-30 p.m. and reaches the mortuary Allahabad at 12-30 in the night. He brought it via the thana. He leaves the village according to the evidence at about 1-30 p.m. reaches police station at 9-30 p.m. and reaches the mortuary Allahabad at 12-30 in the night. He takes three hours to cover the 12 miles between Puramufti and Allahabad but takes about 8 hours to cover a distance of about l2 miles from village Seondha to Puramufti. His explanation for this inordinate delay is two-fold. One that he was delayed because the rasta was kachcha and the other is that it had become dark and the way was kharab and so he took more time. The road between Puramufti and some place probably Makhopur covering a distance of about seven miles is pacca road. Buses ply on this road. The investigating officer went to the spot by bus and ekka. It would be this portion of the road which this constable had to cover at the later stage of his journey and, therefore, the darkness should not have affected the position. In fact he should have reached this Makhopur in good day light if he had really left the village at 1-30 p.m. the distance between village Seondha and Makhopur is 4 or 5 miles. Whatever be the condition of the track between these two villages he should not have taken more than three hours to cover this distance. It follows, therefore, that he should not have taken more than four hours in any case to cover the distance between Seondha and the police station and if he had left the village at 1-30 p.m. he should have been at the police station at 3-30 p.m. This should mean that there is at least a period of four hours which remains unexplained. 23. The only explanation possible in the circumstances is that the first information report was not lodged at 6-40 a.m. but was lodged much later say about noon and that further proceeding was thus delayed by several hours. What accounted for such a long delay in lodging the report is not explained by the prosecution and could be due to the fact that the assailants could not be recognised, that consultations had to be made and that consultation was made with Dr. Nairn who did not reside in the village but resided at Salimsarai at a distance of 12 miles from the village Seondha and at two miles from Allahabad. Nairn who did not reside in the village but resided at Salimsarai at a distance of 12 miles from the village Seondha and at two miles from Allahabad. It is on the Grand Trunk Road. It is thus ten miles from Puramufti. There is a cart track between Salimsarai and Makhopur. It is, therefore, possible that Mirhai should first visit Dr. Nairn and after consulting him proceeded to Puramufti and lodged the report there at about some time after noon. 24. This may leave well open for consideration as to how the police could have recorded 6-40 a.m. when there must have been some other entries in the general diary between 6-40 and the time of a report so made after noon. It is said that a cognizable report was lodged at 8-30 a.m. that day. The suggestion is that information of the incident had reached the police station some time in the morning through the chaukidar and as is usually done no entry was made and the general diary was kept open and various entries were made after getting the full report either just at the instance of Mirhai or as a result of a preliminary inquiry on the spot. According to Mirhai, Chaukidar accompanied him to the thana but the head constable asked him to go away at the time when the report was actually dictated. Chandrapal Singh clerk constable denies that the chaukidar reached the thana at the time of the lodging of the report. This inconsistency about chaukidar's visit to the police station tends to support the accused's suggestions. It follows, therefore, that the mere fact that a cognizable report was lodged at the thana at 8-30 a.m. does not mean that this report in suit must have been made at 6-40 a.m. or at any time before 8-30 a.m. 25. In this connection it has been urged for the complainant that Dr. Nairn may have enmity with the accused but had no connection with Mirhai and that, therefore, Mirhai had no reason to go to him first and consult him about the lodging of the report. It is true that Dr. Nairn is not shown to be related to Mirhai but it is in evidence that Singhai's cousin Chirku and relations of Dr. It is true that Dr. Nairn is not shown to be related to Mirhai but it is in evidence that Singhai's cousin Chirku and relations of Dr. Nairn were murdered in one incident and the enmity between Singhai and the accused started in connection with the Singhai's giving evidence against Zafar Husain and others in that murder case. That incident would bring Dr. Nairn and Mirhai closer and if such an incident of murder takes place in the village it is in any way not impossible that Mirhai might have looked to Dr. Nairn for advice about the version to be given and the accused to be named if the assailants had not been actually recognised. In view of these considerations no implicit reliance can be placed in the statement of Mirhai. 26. We have also discussed about the improbabilities of the incident having taken place as narrated by the prosecution in court. 27. The strongest point urged for the state is that when Mirhai himself received two injuries with the spear and when the assaillants must have been enemies and naturally persons known to them Mirhai must have been able to recognise them and that, therefore, Mirhai could not have any reason even if he had consulted Dr. Nairn to leave out real culprits recognised by him. It is true, as already mentioned, that Mirhai could have been in a position to see the assailants. The question is whether he could recognise, them if the incident had taken place after 10-38 p.m. when there was neither moon light nor lantern light and both Singhai and Mirhai would have been asleep; and the probability of their being in conversation with others including Chaitu and Mohini would he very remote. It would then follow that the assailants on arrival struck both Singhai and Mirhai if both were sleeping outside on the two cots or only Singhai first if there was only one cot as noticed by the investigating officer on the spot. If the attack was made on Mirhai when he was asleep he would wake up on receiving the first injury and impulsively would rush towards the dalan where as already mentioned he fled and fell down. He received one other injury. If the attack was made on Mirhai when he was asleep he would wake up on receiving the first injury and impulsively would rush towards the dalan where as already mentioned he fled and fell down. He received one other injury. In the circumstances he would be more interested in running away than in trying to look up who was giving; him the blow or who had given blows to his father if he had sensed that his father too had been the victim of the incident. In the star light available in the open space between the houses it would be difficult for him to recognise the assailants. Further even if he had recognised the assailants that would not be a guarantee of the fact that the persons named by him must have been the as: ail-ants. If the assailants recognised had been only a single person the mere ability to recognise can be a guarantee that the person accused of the crime must be the culprit as naturally the victim must have no soft corner for him but when persons more than one are accused of the crime it is possible that the persons so accused might comprise both the real culprits and the culprits against whom there might be some reason to bring accusation. In this particular case reference has already been made to the fixing upon of Maqsood as one of the assailants, in fact the only assailant of Mirhai. In these circumstances it is difficult to put reliance on Mirhai's alleged recognition of the assailants and those assailants being the three Appellants. If Mirhai was not sleeping outside on the cot and had rushed out of the house on hearing the cries of his father he would be late in arriving on the spot and the same considerations would apply that he would, at best, be in a position to recognise his own assailants, as the assailants in general would be interested in running away after just inflicting two injuries on Singhai. In view of these circumstances we are not prepared to accept Mirhai's statement at its face value that he recognised the three Appellants among the assailants. 28. Lastly we may refer to two other matters which too do not, however, go in favour of the prosecution case. In view of these circumstances we are not prepared to accept Mirhai's statement at its face value that he recognised the three Appellants among the assailants. 28. Lastly we may refer to two other matters which too do not, however, go in favour of the prosecution case. One matter related to the conduct of the investigating officer in not submitting the case diary sheets to the Superintendent or the police each day after the completion of the investigation. He sent case diaries of the 26th and 27th July on the 29th July according to his deposition in the court and did not care to give any explanation as to why he did so. The matter was not pursued by either the public prosecutor or the defence counsel or by the court. A perusal of the case diary, however, indicates that the case diaries of 26th, 27th, 28th and the 29th of July reached the office of the Superintendent of Police on one day and that was 1-8-1955. The other matter is the disallowing of certain questions by the learned Sessions Judge during the cross-examination of Mirhai. The questions related to his witnessing or otherwise of Singhai's receiving two spear blows and to his omitting to mention about Zafar Husain's giving second spear blow, matters which we have discussed at some length earlier. We really fail to see how the learned Sessions Judge could consider it right to disallow such questions. While disallowing these questions in cross-examination, the learned Sessions Judge passed an order indicating that the first information report is not a full narration of the details of the crime as the plaint is in a civil suit. We acknowledge that a plaint in a civil suit is prepared by attained lawyer after full consultation with his client and on a study of the documents he produces and is therefore complete and detailed in every respect; on the other hand the ordinary complainant in making his fact information report is deprived of all those advantages and cannot therefore be expected to fill in all conceivable details. Nevertheless, if he is an honest man and has seen the occurrence himself there is no reason why he should not be able to give a reasonably complete narration of the incident--there is no question of his merely giving a summary of it. Nevertheless, if he is an honest man and has seen the occurrence himself there is no reason why he should not be able to give a reasonably complete narration of the incident--there is no question of his merely giving a summary of it. In particular, in a case like the present, he should be able to fix the identity of the assailants and mention the part played by them in the assault. It was a matter of importance that in his first report Mirhai merely attributed incitement to Zafar Husain, but in Court declared that be had given a spear thrust. The trial Judge should have allowed him to be given a chance to explain such significant contradictions, though we feel bound to remark that considering the nature of the omissions and contradictions the prosecution case could not have been markedly improved whatever explanations Mirhai might have attempted to offer. 29. Reference may also be made to the remarks by the learned Sessions Judge to the demeanour of Mirhai in the witness-box and which affected him in accepting his statement. He observes in the judgment: For the foregoing discussion, I feel justified in attaching the highest credit to the testimony of Mirhai. I might add that his. evidence before me was given in a frank and natural manner and that he gave no indication of selling a fabricated story either at the police station or at the trial. The report which he is proved to have made was (sic) expression of his independent will before there was time for the interested persons to concoct a convenient story to falsely incriminate the 'innocent persons', and left off the guilty who in this case as suggested by the defence was one 'Shivmohan'. 30. What the learned Sessions Judge has noted about the demeanour of Mirhai is not of much help as it only means that he was deposing without any affectation or any such mannerism which may affect his testimony in any way. We must, however, express that any such demeanour of a witness which goes to affect the court in appreciating his evidence must be noted down at the proper stage during or at the close of the examination of the witness. We must, however, express that any such demeanour of a witness which goes to affect the court in appreciating his evidence must be noted down at the proper stage during or at the close of the examination of the witness. Section 363, Code of Criminal Procedure, is: When a Sessions Judge or Magistrate has recorded evidence of a witness, he shall also record such remarks (if any) he thinks material respecting the demeanour of such witness whilst under examination. and in a way makes it incumbent on the court to record such remarks at the close of the deposition of a witness. This does not necessarily mean that the recording of such remarks later would be illegal. No question of legality or otherwise can arise about the recording of such remarks. To note about the demeanour of a witness in the course of the judgment is not fair. Any such note about the demeanour of a witness should be made known to the learned Counsel of the parties who may have suggestions to make about the observations and the inferences to be drawn therefrom. 31. Similar view was expressed in Criminal Appeal No. 375 of 1952 by a Bench (Luck-now Bench) of which one of us was a member. It was there contended that remarks in the judgment regarding the demeanour of witnesses should not be given any weight if it had not been recorded at the proper stage. The contention was negatived and the learned Judges observed: No authority has however been cited in support of this proposition, whereas the Division Bench in the case State v. Ram Autar Chaudhry and Ors. 1955 A.L. J. 331 observed: The fact that the Sessions Judge had the advantage of seeing the witnesses whose statement he had recorded and had occasion to observe their demeanour--whether he had put in writing his views about it or not--place him in a greater advantage than the appellate court. The clear implication of the sentence 'whether he had put in writing his views about it or not' is that the trial Judge has the option if he so chooses of making remarks regarding demeanour even in his judgment, and no lesser value can be attached to them by the court of appeal. The clear implication of the sentence 'whether he had put in writing his views about it or not' is that the trial Judge has the option if he so chooses of making remarks regarding demeanour even in his judgment, and no lesser value can be attached to them by the court of appeal. Accordingly we are bound to give great respect to the observation of the learned Sessions Judge that the prosecution witnesses did not impress him as witnesses of the truth, though in our opinion he would have been better advised to make his note regarding the demeanour of a witness immediately after recording his statement so as to enable the counsel for the parties to let him have the benefit of their own views in the matter, and it seems to us rather unfair for remarks being made behind the back of the parties and the witness concerned. 32. We must further note that the remarks respecting demeanour should be factual and should be a note of the observations by the court and not of its inferences. Any note expressing the opinion of the court about the credibility of a witness will be prejudicial to the fair trial and embarrassing to the court itself. The observations can be varied and can include remarks about the look or the manner of the witness, his hesitation, his doubts, his variation of language, his confidence or precipitancy, his calmness or consideration. 33. In view of the above we are of opinion that the prosecution evidence in the case is not sufficient to hold that the Appellants were among the assailants of Singhai and Mirhai that night. We, therefore, allow the appeal, set aside the order of the court below and acquit the Appellants of the offences Under Sections 302 and 307 read with Section 34, IPC and direct that they be released from custody forthwith if not required to be detained under any other process of law. The reference is rejected. Zafar Mahmud alias Munney is on bail. He is not to surrender.