JUDGMENT Gangeshwar Prasad, J. - The four appellants, viz., Desraj, Munshi, Sri Ram and Rajendra were tried by the Additional Sessions Judge Ferrukhabad for committing the murder of Jhabhu and causing simple hurt to Dauru on 26-5-1965 in village Kureli, Police Station Mohammadabad, district Farrukhabad. They were all convicted under Sections 302/34, I. P. C. and 323/34, I. P. C. and were sentenced to life imprisonment on the first charge and to one year's rigorous imprisonment on the second charge. One Sukhbhasi was also tried along with them for having abetted the murder, but he was acquitted. 2. The appellants Desraj, Munshi and Sri Ram who are real brothers had a nephew, Rati Ram. Rati Ram was murdered about two years before the incident in question. Nanhey Lal P. W. 1, Dauru P. W. 2, Mewa Ram P. W. 13 and seven other persons were prosecuted for the murder of Rati Ram but they were all acquitted by the court of Session on 19-41965. This acquittal is said to have infuriated Desraj, Munshi and Sri Ram appellants and to have furnished a motive for the murder of Jhabbu. Jhabbu was the brother of Nanhey Lal P. W. 1. Some time before the murder of Rati Ram, Nanhey Lal had filed a complaint against Sukhbasi and he too, therefore, bore ill will against Nanhey and the members of his family. He had also friendly relations with Munshi appellant and the latter had appeared as a defence witness for him in the case started on the complaint of Nanhey Lal. Rajendra appellant is the servant of the other appellants and that is why he is said to have joined them in the commission of the offence in question. 3. The case of the prosecution is that on 26-5-1965 Jhabbu deceased, Gajraj P. W. 3 and Mewa Ram P. W. 13 were working as labourers at the kotha in village Kureli of Lal a Raghubir Sahai of Farrukhabad. At about 4 p.m. while these persons were digging earth outside the kotha they saw the four appellants coming towards them from the side of Piper Gaon, the village in which they lived. Desraj was armed with a spear while the other appellants had lathis in their hands. At about 4 p.m. while these persons were digging earth outside the kotha they saw the four appellants coming towards them from the side of Piper Gaon, the village in which they lived. Desraj was armed with a spear while the other appellants had lathis in their hands. When they came up to a distance of about 12 or 14 paces, Sri Ram appellant, referring to Jhabbu and the other workers, shouted out to his companions that there was a good opportunity to catch hold of them and to kill them. Apprehending danger, Jhabbu, Gajraj and Mewa Ram ran to the south. The appellants pursued them, and Desraj and Munshi appellants overpowered and caught hold of Jhabbu at a distance of about 100 paces from the kotha. Gajraj and Mewa Ram managed to escape to a neighbouring field of Nanhey Lal which was on a higher level. Jhabbu was dragged to a field to the east of the kotha and there Munshi, Sri Ram and Rajendra appellants belaboured him with lathis, while Desraj stood nearby with the spear in his hand. While the attack on Jhabbu was going on, Gajraj and Mewa Ram moved up to a distance of about 50 paces from the place of the attack. On the cries raised by them and also by Jhabbu a number of people, including Nanhey Lal P. W. 1, Dauru P. W. 2 and Rati Ram Sonar P. W. 4 arrived at the scene of occurrence. Among them Dauru advanced to save Jhabbu and thereupon he too was attacked by Munshi, Sri Ram and Rajendra appellants. After Jhabbu had been very severely beaten the appellants ran away towards Piper Gaon. With the help of the people assembled at the place of the occurrence Nanhey Lal brought Jhabbu and Dauru to his house situate about 125 to 150 yards away. There Jhabbu succumbed to his injuries around sun set. At about 8 or 9 p.m. Nanhey Lal started for Police Station Mohammadabad, situate 6 miles away, for making a report, but when he had gone about one and half furlongs he felt that the appellants were planning to waylay him and he, therefore, returned home. After midnight, however, he again left for the Police Station and, reaching there at 4 a.m. lodged a first information report. Gaya Prasad Tripathi, Sub-Inspector, reached village 'Kureli at about 8 a.m. on 27-5-1965. After midnight, however, he again left for the Police Station and, reaching there at 4 a.m. lodged a first information report. Gaya Prasad Tripathi, Sub-Inspector, reached village 'Kureli at about 8 a.m. on 27-5-1965. After holding an inquest on the dead body of Jhabbu he despatched it for postmortem examination. Dauru too was sent to the Mohammadabad dispensary for the examination of his injuries. 4. The postmortem examination showed that Jhabbu, who was about 22 years of age, had sustained 16 antemortem injuries out of which 6 were lacerated wounds and the rest were contusions. The right humerus and tibia bones were found fractured. In the opinion of the Doctor death was due to shock and haemorrhage and the injuries were cumulatively sufficient in the ordinary course of nature to cause death. Dauru was found to have received 6 injuries out of which one was a lacerated wound, one was a contusion, one was an abraded contusion, and three were abrasions. 5. After investigation, the four appellants and Sukhbasi were sent up for trial. We may here indicate what the case against Sukhbasi was. It was said that about an hour before the occurrence, while Jhabbu, Gajraj and Mewa Ram were working at the kotha of Lala Raghubir Sahai, Sukhbasi went there and with smile on his face said to those persons that it was good that they were digging earth, and shortly afterwards he went away towards village Pipar Gaon from the side of which the four appellants later came and killed Jhabbu. It was on this basis that Sukhbasi was charged with abetment of murder. 6. The appellants pleaded not guilty and stated that they had been falsely implicated. They repudiated the alleged motive also, saying that Rati Ram was not the nephew of Desraj, Munshi and Sri Ram appellants. They suggested that Jhabbu and Dauru were assaulted after nightfall and in darkness while they were coming home from Ugarpur railway station on return from Farrukhabad by the 8 p.m. train. The miscreants, according to the suggestion, remained unidentified and the appellants were implicated on account of enmity. 7. The prosecution examined Nanhey Lal P. W. 1, Dauru P. W. 2 Gajraj P. W. 3, Rati Ram Sonar P. W. 4 and Mewa Ram Pr W. 13 as eye witnesses of the occurrence. The miscreants, according to the suggestion, remained unidentified and the appellants were implicated on account of enmity. 7. The prosecution examined Nanhey Lal P. W. 1, Dauru P. W. 2 Gajraj P. W. 3, Rati Ram Sonar P. W. 4 and Mewa Ram Pr W. 13 as eye witnesses of the occurrence. Out 'of them Rati Ram Sonar P. W. 4 did not support the prosecution came and was declared hostile. The remaining four witnesses, however, supported the case of the prosecution and the learned Additional Sessions Judge relied upon their testimony in recording a finding of guilt against the appellants. 8. The most outstanding feature and also a shocking feature of this case is that the first information report relating to the occurrence lodged at Police Station Mohammadabad was removed by the Police from its records and substituted by another first information report, and it was the latter report which was produced before the court. This reprehensible conduct of the investigating agency was brought to light by the defence by getting a copy of the special report of the occurrence (Ext. Kha. 1) placed on record. In the account of the occurrence given in Exh. Kha. 1 we find the words : Desraj ne bhale ke waar kiya, but these words are not to be found. in Exh. Kha. 1 which purports to be the first information report. It has been admitted by Head Constable Raja Ram Pandey P. W. 11, Constable Janardan Singh P. W. 17 and Station Officer Bhagwat Singh P. W. 15 .that a special report is nothing but a copy of the first information report, and it is obvious that the first information report, as it was originally recorded, was substituted by Exh. Kha. 1. Constable Janardan Singh P. W. 17 who prepared the special report came out with a strange explanation in his evidence for the presence of the above mentioned words in the special report. He stated that he wrote out the special report on the dictation of Constable Vijaya Pal Singh from the first information report which the latter held in his hands. His suggestion was that for some reason Constable Vijaya Pal Singh dictated the aforesaid words although they were not actually in the first information report before him. The explanation must be rejected as an atrocious and a brazenfaced lie. His suggestion was that for some reason Constable Vijaya Pal Singh dictated the aforesaid words although they were not actually in the first information report before him. The explanation must be rejected as an atrocious and a brazenfaced lie. There can be no doubt about the fact that since the postmortem report on the dead body of Jhabbu did not disclose any injury which could be attributed to a spear and the first information report as originally recorded was thus in conflict with it, the investigating agency put that report out of its way and replaced it by another report, little suspecting that the misconduct could be exposed before the court by the production of the special report. The learned trial Judge has dis-cussed this feature of the case in detail and has recorded a positive finding that the first information report originally written was substituted by another report and this finding has not been challenged before us by the learned counsel for the State. It is patent that the investigating agency resorted to tampering with and fabrication of documents and then attempted to pervert the course of justice by producing as evidence in court a fabricated document. 9. The question is, how does this affect the prosecution case ? The most obvious result is that the testimony of Nanhey Lal P. W. 1 must lose all its claim to acceptance. The substitution of another report for the report originally lodged by him could not be done without his assistance and he has also definitely stated in his evidence that he made the report Exh. Kha. 1 (the fabricated report) and no other report at the Police Station. Further, he has identified his signature on Exh. Kha. 1 and deposed to having received a copy of it immediately after he had dictated it. Evidently, he lent a helping hand in the fabrication of Exh. Kha. 1 and then swore to its being a genuine document. On the testimony of such a witness it is not possible to place any reliance. It is Nanhey Lal alone who has tried to explain the delay in the making of the first information report by saying, that he returned home after going one and a half furlongs towards the Police Station on account of the fear of being waylaid by the accused. It is Nanhey Lal alone who has tried to explain the delay in the making of the first information report by saying, that he returned home after going one and a half furlongs towards the Police Station on account of the fear of being waylaid by the accused. There is no guarantee that this explanation is true and if that guarantee is lacking it may easily be that, as suggested by the appellants, the occurrence took place in the darkness of the night, and he started for Police Station some time after that. 10. The likelihood of the occurrence having taken place after nightfall and in darkness is indicated by Exh. Kha. 1, copy of the special report, which must be taken as representing the first information report really made by Nanhey Lal. As noted above, it mentions in unambiguous terms -4 that Desraj gave spear strokes. According to the prosecution Desraj alone among the appellants had a spear and it is not possible to believe, in the circumstances of the case, that he abstained from using his spear and remained standing nearby, as the witnesses of the occurrence state. The learned trial Judge too was not prepared to accept that Desraj did not use his spear at all but he observed that it is not unlikely that the spear of Desraj missed its target. He was confronted with the difficulty that the eye witnesses unanimously denied in their testimony the use of the spear of Desraj but he overcame it by posing the probability that the investigating agency after having omitted to mention the use of spear by Desraj in the substituted report, made the witnesses drop the use of spear by Desraj from the prosecution story. Even according to the learned Judge, therefore, the witnesses deposed to something contrary to the truth, and we can neither retain our faith in the rest of their testimony by the consideration that their departure from the truth was due to the pressure of the Police nor regard them as having stated something that they did not in fact state. How can it be said with confidence that they did not yield to the pressure of the Police in their statements regarding other matters or that the report originally recorded was the handiwork of Nanhey Lal ? How can it be said with confidence that they did not yield to the pressure of the Police in their statements regarding other matters or that the report originally recorded was the handiwork of Nanhey Lal ? We do not also agree with learned trial Judge that Desraj could have failed to cause any injury with his spear in spite of his attempts to do so. The conflict between Exh. Kha. 1, copy of the special report, and the medical evidence cannot, in our opinion, be reconciled, and the mention of spear strokes by Desraj in Exh. Kha. 1 is strongly suggestive of the fact that the occurrence took place in dark. ness and that sin& the lacerated wounds on the body of Jhabbu or some of them gave the impression of having been caused by a spear, it was mentioned in the first information report originally lodged by Nanhey Lal that Desraj was armed with a spear and gave spear strokes. 11. The learned trial Judge thought that the medical evidence established the truth of the prosecution story in regard to the time of the occurrence. The medical evidence referred to by him was not the postmortem report on the dead body of Jhabbu but the report (Exh. Kha. 2) relating to the injuries of Dauru P. W. 2 and the statement of Dr. G. S. Misra P. W. 5 who examined the injuries. The injuries of Dauru were examined on 28-5-1965 at 10 a.m. and they were described in the injury report as being two days old. In his deposition Dr. G. S. Misra stated that in the above estimate given by him there can be a margin of error of six hours on either side. This statement, according to the learned Judge, "conclusively supports and confirms beyond the pale of doubt the prosecution case that the occurrence in question took place around 4 p.m. on 26-5-1965." We do not, however, think that the statement of the Doctor can be regarded as conclusive. No medical expert can, ordinarily, fix the age of injuries with definiteness. Naturally, he avoids being dogmatic by making allowance for a margin of error. But a statement as to the margin of error in the estimate of the age of injuries is also only an estimate and it cannot be construed as rigidly fixing the limits of possible error. No medical expert can, ordinarily, fix the age of injuries with definiteness. Naturally, he avoids being dogmatic by making allowance for a margin of error. But a statement as to the margin of error in the estimate of the age of injuries is also only an estimate and it cannot be construed as rigidly fixing the limits of possible error. According to the prosecution the injuries of Dauru were 42 hours old at the time of examination i.e. just on the verge of the lower limit fixed by the Doctor. We think that the possibility of their having been only 37 or 38 hours old at the time of the examination cannot be ruled out. It is certainly true that the time of occurrence alleged by the prosecution is consistent with the opinion of the Doctor but it cannot be said that the time suggested by the defence is negatived by it. 12. As we have already noted, above the direct evidence of the occurrence consists of the testimony of Nanhey Lal P. W. 1, Dauru P. W. 2, Gajraj P. W. 3 and Mewa Ram P. W. 13. Out of these persons Nan hey, Dauru and Mewa Ram were prosecuted for the murder of Rati Ram, nephew of Desraj, Munshi and Sri Ram appellants, and they were all acquitted. Nanhey Lal is also the brother of Jhabbu deceased. Gajraj was not himself involved in the case relating to the murder of Rati Ram, but his brother Har Dayal was a co-accused in that case with Nanhey Lal, Dauru and Mewa Ram. The relations between these witnesses and Desraj, Munshi and Sri Ram appellants must indeed have been very strained. All these witnesses have stated that Desraj was armed with a spear but remained standing at the place of occurrence without having even attempted to use the spear and this statement has to be rejected as a falsehood. A number of other persons are said to have reached the scene of occurrence and witnessed the assault, but the prosecution has contended itself with those persons alone who were in some way connected with the murder of Rati Ram. Rati Ram Sonar P. W. 4 was the only witness produced by the prosecution outside this group of persons but he did not support the prosecution case. Rati Ram Sonar P. W. 4 was the only witness produced by the prosecution outside this group of persons but he did not support the prosecution case. Gajraj and Mewa Ram claimed to have been working at the kotha of Lala Raghubir Sahai on the day of occurrence, but it is a strange coincidence that neither of them had worked there on any previous occasion. Further, both of these persons deposed to the arrival of Sukhbasi and his having said to them smilingly that it was good that they were digging earth. This conduct of Sukhbasi is wholly incomprehensible and the story regarding it is, in our opinion, untrue. We may also note that Lala Raghubir Sahai was examined as a defence witness in the case and he denied that Jhabbu, Mewa Ram and Gajraj were engaged for work at his kotha. Certainly it appears that it was Lala Raghubir Sahai's servant, Man Singh, who used to live in village Kureli and manage his affairs there, but the prosecution did not examine Man Singh. For the reasons stated above we do not find it possible to rely on the evidence of any of the alleged eye witness. 13. It is true that Dauru P. W. 2 is a person received injuries in the course of the occurrence, but the question is whether it can be said with any sense of certainty that he was in a position to recognise the assailants. The learned trial Judge was influenced by the consideration that an injured person would not screen the real offenders and falsely implicate others. This is a weighty consideration only when there is no doubt about the fact that the occurrence took place in such circumstances that an injured person could not have failed to recognise the culprits, but where the existence of circumstances of such a nature becomes doubtful, this consideration is out of place, because the implication of the accused persons may then be due to enmity or suspicion. From the facts of the present case we do not at all feel certain that the occurrence took place in daylight. On the other hand, it appears to us that it took place at night and in darkness when, evidently, the weapons of attack could not be noticed, because otherwise it could not have been alleged that Desraj gave spear strokes. On the other hand, it appears to us that it took place at night and in darkness when, evidently, the weapons of attack could not be noticed, because otherwise it could not have been alleged that Desraj gave spear strokes. In this situation Dauru might not have been able to recognise the assailants. Moreover, this h not a case of a single accused person but a case in which four persons are charged with having taken part in the commission of the crime. The fact that Dauru was in a position to recognise the assailants does not exclude the possibility of his including among the assailants innocent persons as well. There is nothing in the number or nature of the injuries to show that the crime could not have been committed by a smaller number of men, and the part assigned to Desraj appellant is positively false. For these reasons as well the appellants cannot he held guilty merely because Dauru, an injured person, names them as the perpetrators of the crime. We may refer in this connection to Zafar Husain v. The State of U.P., 1956 ALJ 751 where, in dealing with the consideration of the kind mentioned by the learned trial Judge in respect of the evidence of Dauru, Raghubardayal, J. observed : "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 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." Considering all the facts of the case we are unable to place reliance on the evidence of even Dauru either as to the time and the circumstances of the occurrence or as to the persons who participated in it. 14. In the result we are not satisfied with the truth of the prosecution case and in our opinion the guilt of the appellants cannot be said to have been established beyond reasonable doubt. The appeal is accordingly allowed, the convictions and sentences of the appellants are set aside and they are acquitted. 14. In the result we are not satisfied with the truth of the prosecution case and in our opinion the guilt of the appellants cannot be said to have been established beyond reasonable doubt. The appeal is accordingly allowed, the convictions and sentences of the appellants are set aside and they are acquitted. The appellants are on bail; they need not surrender to their bails and their bail bonds are discharged.