JUDGMENT : R.N. Misra, J. - The three Appellants have been convicted by the learned Additional Sessions Judge of Berhampur under Sections 302/34 and 307/34, Indian Penal Code, and each of them has been sentenced to undergo R.I. for life and pay a fine of Rs. 500/- or in default suffer R.I. for a period of six months more. 2. One Gajendra had four sons Dharma, Ballava, Rajiba and Biswanath. Kamal p.w. 13 is the paternal uncle of these four brothers. These four brothers had become, separate from Kamal as also inter se living in separate mess and having their separate properties. Over the irrigation from a channel for Podu cultivation a dispute arose between Ballav on one side and Kamal on the other. A complaint was made before the local Naib Sarpanch p.w. 8. He, however, settled up the dispute on 30.10.1967 in terms whereof Ballav was to pay Rs. 100/- to Kamal. Ballav wanted a week?s time to make the payment. Kamal had certain lands near about upon which ten date trees and a house were located. P.W. 13 had also certain date trees at a little distance. On 3.11.1967, p.w. 5, a brother of Ballav, found the three accused persons sitting near the date trees and drinking liquor. P.W. 4, the other brother of Ballav, also saw them there that evening. Accused Adinga and Dukhishyam upon query from p.w. 4 stated to him that they were there as desired by Ballav in connection with some plan. It was already dark Ballav went into the village and procured from p.w. 1 a lantern and lighted the same. The three accused persons and at the instance of Ballav p.ws. 4 and 5 went to the orchard of Kamal p.w. 13. Dukhishyam held the lantern and showed the light to accused Adinga who claimed on some of the date trees one after the other, took out from his pocket a small bottle and poured something therefrom in the earthen pots attached to the trees for collection of date juice. Ballav stated to p.ws. 4 and 5 on Their query that some enchanted medicine was being poured into The earthen pots so that when juice would be drunk by Kamal he would die and the accused Ballav would not be required to pay Re. 100/- in terms of the settlement of the Naib Sarpanch. Ballav stated to p.ws. 4 and 5 on Their query that some enchanted medicine was being poured into The earthen pots so that when juice would be drunk by Kamal he would die and the accused Ballav would not be required to pay Re. 100/- in terms of the settlement of the Naib Sarpanch. Next morning p.w. 11 the elder son of Kamal brought down the earthen pots from the trees. P.w. 12, the younger brother of Balaram p.w. II boiled the juice for better fermentation. The drinks were prepared and by then Hari (the deceased), Kanka Bhuyan p.w. 15, Khata Gamango p.w. 14 and Padhan Arsi p.w. 16 came over and joined p.w. 13 Kamal. All the five along with p.w. 11 enjoyed the boiled date juice. Hari took twice as much as others. Soon after the drinking was over these persons felt burning sensation in their throats and chests and had reeling of heads. They also purged and vomited. Had was carried, home where he died by the morning of 6-11-1967. Others, however, survived. 3. P.w. 6, a co-villager informed the local Sarpanch., p.w. 7 who lived two miles away about the incident. P.w. 7 and P. w. 8 (the Naib Sarpanch) came to the village and sent to a written report Ext.-1 to the Officer-in-charge of Ramgiri Police station who, registered the same as a U. D. Case. The Police officer came to the village on 8-11-1967 and he p. w. 21 made certain enquiries, On 13.1.1967 he took the accused persons into the custody. He caused the production of these accused persons before the Magistrate on 18-11-1967 and, on 20.11.1967 the accused persons made confessional statements. Exts. 7, 7/1 and 7/2 are these statements. In their statements they admitted to have mixed poison because Ballav wanted to kill Kamal so that be may no more be called upon to pay the amount of Rs. 100/- as per the Panchayat decision. 4. At the trial 21 witnesses were examined for the prosecution including, the victims who suffered from the drinks mixed with poison. The learned Additional Sessions Judge attached considerable importance to the evidence of p.ws. 4 and 5 and found some corroboration from the other witnesses. 100/- as per the Panchayat decision. 4. At the trial 21 witnesses were examined for the prosecution including, the victims who suffered from the drinks mixed with poison. The learned Additional Sessions Judge attached considerable importance to the evidence of p.ws. 4 and 5 and found some corroboration from the other witnesses. Though the learned trial Judge found that The police bad not carried on investigation properly and had not conducted the same in a clean manner yet he accepted the prosecution case and convicted the Appellants in the manner aforesaid. 5. The charge u/s 302/34, Indian Penal Code against the three Appellants is in respect of the deceased had and the charge u/s 307/34, Indian Penal Code is in respect of the five other victims p.ws. 12 to 16. The poison in this case is said to be (sic), a rat-killer. It appears from the record that Jagabandhu Naik, the Sub-Postmaster, had supplied the same. There is enough material on record and the learned trial Judge was justified when he held that the Police in this Case appears to have conducted the investigation in a very perfunctory manner. Though the, Investigating. Officer has stated the arrested the accused persons only on 13.11.1967, there is enough evidence to show, that the accused persons were actually under Police surveillance from 8-11-1967 or 9-1-1967. The Police appeared in the village on 8.11.1967 pursuant to the report Ext. 1 dated 6-11-1967. When the report clearly indicated that as a result of poisoning Hari (sic) died and others were lying seriously ill, it is difficult to understand as to how a U.D. case was registered in the Police Station and thereafter proper and timely Action was not taken to proceed with the investigation. The delay of about 5 days in arresting the accused persons and conducting the investigation is a very suspicious circumstance. 6. It is true in the report Ext. 1 dated 6-11-1967 sent by the Sarpanch the name of the accused was not indicated, but it was referred to as some unknown culprit. But the Police seems to have a fair idea as to who was the real culprit long before 13.11.1967. A letter sent by the Investigating Officer dated 10.11-1967 to the Medical Officer of the R. Udayagiri Hospital reads thus: It is reported that he (Kamal. p.w. 13) has taken poisonous Khajara juice on 4-11-1967, administered by the accused persons. But the Police seems to have a fair idea as to who was the real culprit long before 13.11.1967. A letter sent by the Investigating Officer dated 10.11-1967 to the Medical Officer of the R. Udayagiri Hospital reads thus: It is reported that he (Kamal. p.w. 13) has taken poisonous Khajara juice on 4-11-1967, administered by the accused persons. He himself has stated in Court: Before 11-11-1967 the accused persons including the accused Odinga had more or less confessed their guilt, requiring me to search the house of Jagabandhu to find out such a poison threat although I got this clue. I did not draw the formal F.I.R. or forward these persons for recording their confession, since I wanted to verify the truth in their confession, by undertaking further investigation. Since that time that is, on or before 11-11-1967 I kept these accused persons under my personal watch Curiously enough this Jagabandhu has not all been examined by the Investigating Officer. There is some evidence that this Jagabandhu is a relation of p.w. 8, the Naib Sarpanch. There is sumptuous evidence that the Sarpanch, the Naib Sarpanch and some others had been coming to the village off-and-on during the period between 8.11.1967 and 13.11.1967. 7. Another infirmity in the investigation and the conduct of the Police Officer must also be noticed. Admittedly he had initiated the investigation long before 13-11-1967, but he recorded the F.I.R. only that day and opened the case diary also on that day. In this connection when he was cross-examined he stated: I did not open the diary after registering the U.D. Case at the time although under rules we have to open such diary after 24 hours of the enquiry. It would be better for me to register this Ext. 1 as a case u/s 328, Indian Penal Code, but not U.D. Case. These are some of the suspicious features of the case. But we are not prepared to acquit the accused persons merely on that ground. 8. P.ws. 4 and 5 have been relied upon by the learned trial Judge as the most dependable witnesses for the prosecution case. As already stated, they are the two younger brothers of accused Ballav. Admittedly these brothers are separate and there is some evidence to show that in regard to partition of properties there was some difference of opinion between them. 4 and 5 have been relied upon by the learned trial Judge as the most dependable witnesses for the prosecution case. As already stated, they are the two younger brothers of accused Ballav. Admittedly these brothers are separate and there is some evidence to show that in regard to partition of properties there was some difference of opinion between them. These two witnesses had not been assigned any role in the plan. When the accused persons were going to, put poison to secure the death of the paternal uncle of Ballav an attempt must have been made to confine the knowledge of the plan to the minimum number of persons and only persons of strict confidence must have been admitted into the matter. We find that p.ws. 4 and 5 had no role to play in working out the plan and they were not willing to accompany the accused persons but were threatened by Ballav to do so. In case their relationship with Ballav was good it is very difficult for us also, keeping normal human conduct in view, to accept that they would have come to Court to depose against Ballav. We cannot accept that p.ws. 4 and 5 had really been called by Ballav to go to the spot while poison was being put into the earthen pots fastened to the date trees more for the purpose of witnessing the incident and hear testimony against the accused persons at the trial than for any other purpose. The learned trial Judge should have kept this aspect in view and, therefore, should have rejected their evidence. These two witnesses appear to have come to support the prosecution case more out of their enmity against Ballav than with a view to supporting the cause of justice. 9. It has been admitted by the prosecution witnesses that it was a dark night. "With the light of the lantern put at tile bottom of the tree it would indeed be very difficult to see what p.ws. 4 and 5 have stated to have been, namely, that Odinga brought out a small bottle from his pocket and poured some of its contents into the earthen pots attached to each of the two trees. "With the light of the lantern put at tile bottom of the tree it would indeed be very difficult to see what p.ws. 4 and 5 have stated to have been, namely, that Odinga brought out a small bottle from his pocket and poured some of its contents into the earthen pots attached to each of the two trees. The evidence of these witnesses seems to be more or less mechanical and the prosecution seems to have taken assistance of these two witnesses to give assuring support to its case, but their evidence is indeed very unnatural and we find it difficult to accept the same. 10. The confessional statements Exts. 7, 7/1 and 7/2 also seem to be-somewhat dubious. These accused persons had been detained under Police custody for quite a long period, that is at least from 8-11-1967 till 18-11-1967 when they were produced before the Magistrate. The statements u/s 164, Code of Criminal Procedure, were taken on 20-11-1967, that is with a gap of one day after their first production. Some of these accused persons have clearly stated that they had confessed because the Police bad given them a good beating and bad threatened dire consequences if they did not confess. There is some evidence from which it would appear that the presence of the Police Officers even during the recording of the statement could not be ruled out. The learned Magistrate (p.w. 9) has not clearly indicated that he bad taken all the safeguards that were necessary under the la w before he proceeded to record the statements. In the circumstances we are also not in a position to attach any importance to these statements. 11. While these are infirmities in the prosecution case which cast serious doubt in our minds about the complicity of the accused persons in the alleged offences, there are other features which probablise the defence contention that they were roped in to extend protection to the Actual offenders. The non-examination of the supplier of the poison, the frequent visits of he Naib Sarpanch and others to the locality, the inaction of the investigating officer and commission of breach of the rules by him and his conduct during the entire period all put together give rise to a serious suspicion in our mind that the Appellants have been roped in this case with a view to covering the Actual offenders. We would reiterate that this suspicion of ours would lot have by itself been sufficient to earn an acquittal for the Appellants, but as we have indicated there are serious infirmities in the prosecution case and the truth does hot seem to have been told in the Court. In suppressing the truth the Investigating Officer has a large role to play. In a case of this type he should have been alive to the situation and should have behaved in an appropriate manner so as to bring the real offenders before the court for the vindication of Justice. 12. In the facts and circumstances of the case we would, therefore, hold that the prosecution has failed to establish beyond reasonable doubt the charges against the three Appellants. 'They (sic) thus entitled to benefit of doubt. We would accordingly now the appeal, set aside their convictions and acquit them they shall be released forthwith. B.K. Patra, J. 13. I agree. Final Result : Dismissed