JUDGMENT 1. Eight accused, viz. Hasan Khan. Munshi, Sitab Khan, Shahjad Khan. Khushi Khan, Alianoor, Chhotey and Bundu were tried by the learned Additional Sessions Judge, Gangapur City in connection with an occurrence which took place on November 7, 1973 at 6 p.m. in village Paota. In the course of that occurrence Sanwat sustained fatal injuries and Noor Mohammad sustained eight injuries. The learned Additional Sessions Judge convicted Hasan Khan, Chhotey, Alianoor and Bundu under section 304 Part I and S. 323 Indian Penal Code and sentenced each one of them to rigorous imprisonment for life and to suffer rigorous imprisonment for six months respectively under each count. The rest of the four accused were acquitted by the learned Additional Sessions Judge by the same judgment. The convicted accused have come up in appeal before this Court. 2. Forsely speaking and snorn of all unnecessary details the prosecution story as disclosed at the trial is that on November 7, 1973 P.W. 1 Noor Mohammad, son of Sanwat and his father Sanwat (since deceased) were sitting on the `Tibari' ( frckjh ) outside his house. At that time the four accused-appellants Hasan Khan, Chhotey, Alianoor and Bundu came there and left their bullock-cart on the way. Noor Mohammad asked them not to obstruct the way. The accused got infuriated and started abusing Noor Mohammad. Accused Chhotey was armed with a `Gandasi' and the other accused were armed with `lathis'. Accused Chhotey inflicted a `Gandasi'blow on the head of Sanwat from the wrong side of the`Gandasi'. The other accused inflicted `lathi-blows' on the person of Sanwat. Noor Mohammad rushed to rescue his father but lie was also belaboured and thereafter the accused took to their heels. It is alleged that P. W 3 Pyare Khan, P. W. 2 Noor Mohammad son of Kajju Khan and P. W. 4 Mst. Noor Jahan are the eye-witnesses to the occurrence. The condition of Sanwat grew serious due to the injuries sustained at the hands of the accused. He was taken by P.W. 1 Noor Mohammad to the hospital at Gangapur where he was admitted as an indoor-patient. The younger brother of P.W. 1 Noor Mohammad and P. W. 3 Pyare Khan, maternal uncle of Noor Mohammad also accompanied him. The condition of Sanwat grew serious due to the injuries sustained at the hands of the accused. He was taken by P.W. 1 Noor Mohammad to the hospital at Gangapur where he was admitted as an indoor-patient. The younger brother of P.W. 1 Noor Mohammad and P. W. 3 Pyare Khan, maternal uncle of Noor Mohammad also accompanied him. A first information report of this occurrence was lodged at the Police Station, Gangapur City on November 8, 1973 at 8-30 a.m. On the basis of typed first information report Ex. P. 1 the Station House Officer P. W. 9 Ramhet Lal registered a case against the four accused-appellants, under S. 488 and 324 Indian Penal Code Sanwat (deceased) was clinically examined by P.W. 7 Dr. R. Chandra Tatuka on November 8, 1973. He noted 14 injuries on the person of Sanwat (deceased). On the same day P.W. 1 Noor Mohammad, son of Sanwat, was also examined P.W. 7 Dr. R. Chandra Tatuka noticed 10 injuries on his person. By the same doctor accused Hasan Khan, Yad Khan, son of Shahid 3. Khan and Alianoor were also clinically examined the injury reports are Ex. P. 9, 4. Ex. P. 10 and Ex. P. 11 respectively. Sanwat remained an indoor-patient up to November 13. 1973. On November 8. 1973 Sanwat made a dying declaration which was recorded by P. W. 5 Shri Ashok Kumar, Addl. Munsiff Magistrate, Gangapur. The dying declaration is Ex. P. 5. Though Sanwat was not. reserved by the Medical Officer, but he left the hospital and came to his house. Later on his condition became serious, and he was taken to the hospital at Karauli, and was admitted as an indoor-patient. On November 25, 1973 he succumbed to his injuries. P. W. 6 Dr. P. C. Sharma performed the autopsy on the dead-body of Sanwat.He found the following external injuries on the dead-body of Sanwat 1. Healed abrasions 1/4" x 1/4'and 1/4" x ⅙" above the lateral aspect of left lower leg. 1" below knee joint. 2. Healed abrasion 1/4" x 1/4" over back of left fore-arm 1" below elbow joint. 3. Healed abrasion 1/4" x 1/4" over back of left fore-arm middle 1 /3rd. 4. Healed abrasion 1/2" x ⅓" back of left elbow. 5. Healed abrasion ⅓"x 1/4" over back of left fore-arm 1'above wrist joint. 6. 1" below knee joint. 2. Healed abrasion 1/4" x 1/4" over back of left fore-arm 1" below elbow joint. 3. Healed abrasion 1/4" x 1/4" over back of left fore-arm middle 1 /3rd. 4. Healed abrasion 1/2" x ⅓" back of left elbow. 5. Healed abrasion ⅓"x 1/4" over back of left fore-arm 1'above wrist joint. 6. Healed abrasion ⅓" x ⅙" and 1/4" x 1/4 over the back of first phalanx of left little and ring finger. 7. Healed wound J/3rd"x 1/10" over left eye-brow. 8. Informity of right fore-arm postero medial aspect middle I/3rd in an area of 2" x 11/2" crepitus present. 9. Slight swelling in an area of 2" x 1' over right parietal area of scalp J" to the right of mid line. On internal examination of the scalp the following injuries were found : 1. Fracture of right parietal and temporal bones starting from 1/2'to the right of mid line and 1' behind coronal store. 2. Fissured type of fracture 3" long and complete bone thickness. Membrane and brain found to be congested. Sub-dural haematoma over right frontal and parietal bones and extending over left frontal and parietal lobe also in an area of 31/2" x 21/2". Clotted and flued blood present. Brain congested over parietal lobe. 3. Fracture of right ulna middle and third corresponding to the site of deformity of right fore-arm mentioned on page No. 1 of the postmortem report. 5. In the opinion of the doctor the cause of death was head injury due to fracture of skull bones and subdural haematoma. P.W. 6 Dr. P.C. Sharma further stated that the injuries were dangerous and in most of such cases such injuries cause death but not always specially if the person gets proper treatment. The Police after usual investigation submitted a challan against the four accused appellants in the Court of learned Munsiff and Judicial Magistrate, First Class, Gangnfur City, the learned 6. Magistrate took cognizance against the other four (acquitted) accused on the basis of the dying declaration Ex. P. 5 and committed all the accused to stand trial in the Court of Addl. Sessions Judge, Gangapur City. The accused pleaded not guilty to the charge., 7. The prosecution in support of their case examined nine witnesses out of whom P. W. 1 Noor Mohammad son of Sanwat, P. W. 2 Noor Mohammad son of Kajiu Khan. P. 5 and committed all the accused to stand trial in the Court of Addl. Sessions Judge, Gangapur City. The accused pleaded not guilty to the charge., 7. The prosecution in support of their case examined nine witnesses out of whom P. W. 1 Noor Mohammad son of Sanwat, P. W. 2 Noor Mohammad son of Kajiu Khan. P. W. 3 Pyare Khan and P. W. 4 Mst. Noor Jahan were examined as eye-witnesses to the occurrence. P. W. 5 Shri Ashok Kumar Additional Munsiff Magistrate was examined to prove the dying declaration Ex. P. 5, P. W. 6 Dr. P. C. Sharma is the person who performed the autopsy on the dead-body of Sanwat, and P. W. 7 Dr. R. Chandra Tatuka was examined to prove the injuries of P. W. 1 Noor Mohammad. P. W. 8 Ishwar Chand is the Investigating Officer of this case. P. W. 9 Ramhetlal is the Station House Officer of the Police Station, Gangapur City who registered the case against the four accused-appellants and handed over the investigation to P. W. 8 Ishwar Chand. The accused denied their complicity in the crime. They examined one witness P. W. 1 Hamid in support of their plea. The learned Additional Sessions Judge did not consider it safe to convict the accused Munshi, Sitab Khan Shahjad Khan and Khushi Khan on the basis of the dying declaration made by Sanwat (deceased). He placed reliance on the statements of the four eye-witnesses mentioned above and convicted all the four accused-appellants under S. 304 Part I and 323 Indian Penal Code, and sentenced them as mentioned above. It is not disputed that Sanwat (deceased) sustained the injuries noticed by P W- 7 Dr. R. Chandra on November 7, 1973 and as a result of these injuries he later on died. From the statements of P. W. 7 Dr. R. Chandra, P. W. 6 Dr. P. C. Sharma, P. W. 1 Noor Mohammad, P. W. 3 Pyare Khan and P. W. 4 Noor Jahan it stands proved that Sanwat (deceased) died of the injuries sustained by him on November 7, 1973. 8. Mr. Chatterjee, appearing on behalf of the accused, has urged that there are certain outstanding features of this case, which are sufficient to throw doubt on the entire prosecution case. It has been urged that the prosecution witnesses have concealed the true version of the occurrence. 8. Mr. Chatterjee, appearing on behalf of the accused, has urged that there are certain outstanding features of this case, which are sufficient to throw doubt on the entire prosecution case. It has been urged that the prosecution witnesses have concealed the true version of the occurrence. They have changed the place of occurrence. The entire prosecution case is sought to be proved by the partisan witnesses, and their statements ought not to have been believed by the trial court. The witnesses have not come up with correct version as to how the quarrel actually started. They have also failed to give reasonable explanation for the injuries found on the person of accused. The learned Additional Government Advocate has supported the judgment of the trial court. 9. Mr. Chatterjee, learned counsel for the appellant, urged that there has been considerable delay in giving first information report and the author of the first information report had sufficient time to consider the persons who have to be implicated. The occurrence took place at 6 p.m. on November 7, 1973 and the first information report was lodged on November 8, 1973 at 8 30 a.m. The distance between the Police Station and the place of occurrence is 15 miles. It is alleged that after the assault P.W. 1 Noor Mohammad found the condition of Sanwat (deceased) procarious. He took him to the hospital at Gangapur City. It has also come in the statement of P. W. 1 Noor Mohammad that P. W. 3 Pyar Khan is the maternal uncle and his younger brother accompanied him to the hospital. It does not stand to reason why the first information report of this occurrence was not lodged within a reasonable time. He could have sent his maternal uncle .or P. W. 2 Noor Mohammad son of Kajju Khan to the Police Station for lodging the first information report just after the occurrence or at least after the first aid was provided to Sanwat (deceased) and he was admitted in the hospital. The first information report in this case is a typed one. In a criminal case the first information report is the basis of the prosecution case set up by the first informant. It is very useful if recorded before there is time and opportunity to embellish. Undue and unreasonable delay in lodging the first information report inevitably gives rise to suspicion. In a criminal case the first information report is the basis of the prosecution case set up by the first informant. It is very useful if recorded before there is time and opportunity to embellish. Undue and unreasonable delay in lodging the first information report inevitably gives rise to suspicion. The delay in lodging the first information report in this case has not been explained satisfactorily. This infirmity of the case when considered with the other infirmities in the case on hand casts a doubt regarding the correctness of the prosecution story. We have reasons to hold that this time must have been utilised for settling down the prosecution story. 10. Mr. Chatterjee/next referred to the fact that there had been considerable delay by the Police in examining the prosecution witnesses P. W. 2 Noor Mohammad and P. W. 4 Noor Jahan, who had figured in the case and no reliance can be placed on their statements. P. W. 1 Noor Mohammad is the son of the deceased Sanwat, P. W. 2 Noor Mohammad son of Kajju Khan's daughter was married to Matol and Matol's sister was married to P. W. 1 Noor Mohammad. P. W. 3 Pyare Khan is the brother-in-law (loser) of the deceased Sanwat and P. W. 4 Noor Jahan is the wife of the deceased. Though all these witnesses are close relatives of the deceased Sanwat and were available at their respective places but they were interrogated by the Police after a considerable time. P. W. 2 Noor Mohammad was examined after 15 days of the occurrence. P. W. 4 Mst. Noor Jahan was examined after 26 days of the occurrence. No cogent and convincing reason has been given as to why they could not be examined by the Police just after the occurrence, and as such an adverse inference can be drawn against the prosecution case. 11. Besides these facts in the first information report it has been mentioned that other persons had also witnessed the occurrence. The same is the statement of P. W. 2 Noor Mohammad son of Kajju Khan. But none of the independent witness has been examined by the prosecution. The occurrence is alleged to have taken place in the busy locality of the village at a time when the villagers are expected to be in their houses. The same is the statement of P. W. 2 Noor Mohammad son of Kajju Khan. But none of the independent witness has been examined by the prosecution. The occurrence is alleged to have taken place in the busy locality of the village at a time when the villagers are expected to be in their houses. Non-production and deliberately keeping back of the uninterested neighbours casts a serious reflection on the propriety of the trial itself and validity of the conviction of the appellants is open to serious challenge. 12. The occurrence took place on November 7, 1973 at 6 or 7 p.m. The accused Alianoor lodged a first information report of the occurrence at the same Police Station on November 7, 1973 at 9.30 p.m. within three hours of the occurrence. The first information report lodged by the accused is Ex. P. 24. In this first information report it has been mentioned that the occurrence took place in the way leading from the well to their houses. Sanwat (deceased) made a dying declaration Ex P. 5 on November 8, 1973. In this dying declaration also he stated that accused Khushi Khan, Shahjad Khan, Sitab and Munshi (acquitted accused) were on the well. He was beaten by all these three or four. Thus according to the first information report given by the accused as well as the dying declaration Ex. P. 5 the place of occurrence was neither the `Tibari' attached to the house of the deceased nor the way in front of his house, whereas in the first information report lodged by P. W. 1 Noor Mohammad after 14 hours of the occurrence the place of occurrence has been shown to be `Tibaii'and the place in front of his house. A perusal of Ex. P. 2 site inspection memo shows that the blood-stains were not found on the place where according to the prosecution case the occurrence had taken place. P. W. 1 Noor Mohammad did not state in the first information report Ex. P. 1 that the accused came with bullock-cart and left it in front of his house and this led to a quarrel between the parties. It appears that the fact regarding leaving of the Bullock-cart in front of the house of the deceased Sanwat has been introduced to fix the place of occurrence in front of P.W. 1 Noor Mohammad's house. It appears that the fact regarding leaving of the Bullock-cart in front of the house of the deceased Sanwat has been introduced to fix the place of occurrence in front of P.W. 1 Noor Mohammad's house. This introduction had definite purpose of making the accused aggressors and P. W. 4 Mst. Noor Jahan and P.W. 2 Noor Mohammad natural witnesses of the occurrence. From the statement of P. W. 7 Dr. R. Chandra and the perusal of the injury reports of the accused as well as that of P. W. 1 Noor Mohammad it becomes clear that the accused sustained injuries at or near the time when Sanwat (deceased) and P.W. 1 Noor Mohammad sustained injuries. The prosecution witnesses have failed to explain the injuries sustained by the accused persons. The reason for their denial is obvious. This denial has been made in order to meet the plea of self defence raised by the accused. It is the duty of the prosecution to explain the injuries sustained by the accused. It is not the case of the prosecution that the injuries found on the person of the accused by P. W. 7 Dr. R. Chandra were self sustained, and as such even if the plea of self defence is not held to be proved then also it can be very well said that the prosecution witnesses are not telling the whole truth before the court. The failure of the prosecution to offer any explanation as to how the accused sustained injuries when considered with the other infirmities already pointed out in the statements of the eye-witnesses shows that the evidence of the prosecution witnesses with regard to the incident was not true. 13. Another infirmity in the prosecution case is that in Ex. P. 5 (dying declaration) Sanwat (deceased) has given the names of four other accused persons as his assailants who have already been acquitted by the trial court and no appeal has been filed on behalf of the State, whereas all these witnesses have assigned the injuries sustained by Sanwat (deceased) and P. W. 1 Noor Mohammad to the four accused-appellants. The present is a case wherein one set of prosecution witnesses condemn the other set of evidence. The function of a court in a criminal trial is to find whether the person brought before the Court as accused is guilty of the offence he is charged with. The present is a case wherein one set of prosecution witnesses condemn the other set of evidence. The function of a court in a criminal trial is to find whether the person brought before the Court as accused is guilty of the offence he is charged with. For this purpose the court should scan the material on record to find whether there is any reliable or trustworthy evidence on the basis of which it is possible to base the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence which contradict and strike at each other to show each other to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence on which the conviction of the accused might be based. Inevitably the accused would have the benefit of such a situation. 14. We are not at all satisfied that the evidence led on behalf of the prosecution excludes reasonable doubt in regard to the guilt of the accused-appellants. There is no cogent and reliable evidence to hold that the accused-appellants were the aggressors or they were the assailants. Since the prosecution case against the appellants cannot be said to be free from reasonable doubt we acquit the appellants of the offences charged against them. 15. For the above mentioned reasons, we accept the appeal and set aside the conviction and sentence awarded to the accused-appellants. They are acquitted of all the charges framed against them and they shall be released forthwith if not required otherwise. *******