JUDGMENT P. N. Goel, J. 1. THIS appeal by Jaibir is directed against the order dated 29-8- 1978 passed by II Additional Sessions Judge, Muzaffarnagar convicting him u/Sections 324 and 302 IPC. He has been sentenced to undergo R1 for 2 years under Section 324 IPC and has been sentenced to death under Section 302 IPC. There is the usual reference by the Additional Sessions Judge for confirmation of the death sentence awarded to the appellant. 2. SIMPLE case of the prosecution against Jaibir appellant was that on 7-3-1976 at about 12 O'clock the appellant assaulted Smt. Dharamwati (PW1), wife of his brother Harbir in his room called Dukaria in village Sonpur Bopara within police station Mansoorpur, district Muzaffarnagar by a Kripan. Harbir caught Jaibir in his arms. There upon Jaibir gave a Kripan blow at the stomach of Harbir who succumbed to the injury on the same day at 10.05 p. m. in district Hospital, Muzaffarnagar. Jaibir, Tejpal, Rambir and Har bir are real brothers. Jaibir was in service at Aligarh at the time of occurrence. He had developed illicit intimacy with the wife of Tejpal. On this account Harbir and Smt. Dharamwati separated from Jaibir, Tejpal and Rambir who continued to remain joint. Site plan (Ex. Ka 9) shows separate rooms of Harbir, Jaibir and Tejpal. There used to take place quarrel between Smt. Dharamwati and the wife of Tejpal. This quarrel is said to be the reason for the assault in question. . 3. SABHA Chand, uncle of Harbir and Jaibir took both the injured from the village to the District Hospital Mu zaffarnagar. 4. ON the date of occurrence at 4.20 p.m. Dr. R. K. Jain (PW 8) examined Harbir and found two incised wounds detailed below: 1. Incised wound 1 1/2" x 1/2" x not probed on left side abdomen-6" from umbillicus at 1 O'clock position. 2. Incised wound 2" x J" x not probed on right side abdomen 5" from umbillicus at 11 O'clock position. Injury No. 2 Appears to be the wound of entry and injury no. 1 appears to be the wound If exit. On the same day at 4.40 p.m. Dr. R. K. Jain examined Smt. Dharamwati and found 4 incised wounds on her person described hereunder: 1. Incised wound 3" x 1/4" scalp on the left side of head oblique 3" from left ear. 2. 1 appears to be the wound If exit. On the same day at 4.40 p.m. Dr. R. K. Jain examined Smt. Dharamwati and found 4 incised wounds on her person described hereunder: 1. Incised wound 3" x 1/4" scalp on the left side of head oblique 3" from left ear. 2. Incised wound 1" x 1/10" x muscle on the left side head 1 1/2" above the left eye-brow. 3. Incised wound 2" x 1/4" x muscle on the right side head 2" above the right ear. 4. Incised wound 3" x 1/4" x bone on the front right fore-arm lower part. 5. THE above incised, wounds were simple in nature. 6. AS stated above Harbor breathed his last in the District Hospital on 7-3-1976 at 10.05 P. M. Information of his death was immediately sent from the hospital to police station Muzaffarnagar (Ex. Ka. 5). R. L. Gautam, S. I. (PW 6) attached to police station Kotwali reached the hospital in the morning of 8-3-1976 at 9.15 A. M. He held inquest on the dead body of Harbir and sent it for post-mortem examination. On 8-3-1976 at 3 P. M. Dr. N. C. Garg (PW 4) conducted autopsy on the dead body of Harbir. He found 2 ante-mortem incised punctured wounds on the dead body. These wounds cor respond to the incised wounds found by Dr. R. K. Jain. 4th rib was found cut under injury no. 1. Lower border of the mentum was cut. Right side of the liver had cut through and through. Stomach, spleen and 9th rib under injury no. 2 were cut through and through. There was blood in the abdominal cavity as well as stomach. 7. IN the morning of 8-3-1976 Smt. Dharamwati got a report written by one Harbans Singh. This report was sent to police station Muzaffarnagar through one Jai Prakash. It was lodged at the police station on 8-3-1976 at 9.15 a. m. Sri Jagdish Singh, Station officer (PW 7) investigated into the case and ultimately submitted charge sheet against Jaibir appellant and Tejpal on 5-5- 1976. 8. TEJPAL was discharged by the Additional Sessions Judge. Jaibir appellant only was tried by the Additional Sessions Judge. It was lodged at the police station on 8-3-1976 at 9.15 a. m. Sri Jagdish Singh, Station officer (PW 7) investigated into the case and ultimately submitted charge sheet against Jaibir appellant and Tejpal on 5-5- 1976. 8. TEJPAL was discharged by the Additional Sessions Judge. Jaibir appellant only was tried by the Additional Sessions Judge. Defence of Jaibir from the very beginning was that he was not in his village on the date of occurrence, that he had not assaulted Harbir and Smt. Dharamwati as alleged and that on the date of occurrence he was at Aligarh where he was in service from before the occurrence. 9. ON facts the prosecution examined Smt. Dharamwati and her daughter Km. Murlialias Sudesh, aged about 8 years (PWs 1 and 3). ON the other side the appellant examined Sabha Chand, Sri R. A. Khan and N. S. Chauhan (DWs 1 to 3). 10. THE Additional Sessions Judge believed Smt. Dharamwati and Km. Murli and did not believe the evidence of the defence witnesses. Km. Murli is a child witness. She can easily be tutored by her mother. Therefore, the main point for consideration is whether Smt. Dharamwati's testimony can be accepted. It has to be considered whether she is a wholly reliable witness. In case it is found that she is not a wholly reliable witness, it would but be appropriate to find corroboration of her testimony either by the evidence of some reliable or independent witness, or by the circumstances appearing on the record. The record was examined with the assistance of Sri P. C. Chaturvedi, Senior Advocate for the appellant and Sri Jitendra Nath learned counsel for the State. 11. FOR the reasons set out below we are of the opinion that Smt. Dharamwati is not a wholly reliable witness. She can easily tell a lie : (1) In the first information report she mentioned that after her husband Harbir had fallen down Tejpal Singh came up and assaulted her with a ham mer. In her cross-examination she stated that Tejpal gave 2-3 hammer blows on her head. But Dr. R.K. Jain did not find a single injury on her person which was caused by a hammer. It means that she made an attempt to falsely rope in Tejpal Singh. In her cross-examination she stated that Tejpal gave 2-3 hammer blows on her head. But Dr. R.K. Jain did not find a single injury on her person which was caused by a hammer. It means that she made an attempt to falsely rope in Tejpal Singh. We have indicated above that Tejpal was challaned by the police and that he was discharged by the Additional Sessions Judge. (2) It is the positive case of the prosecution that Jaibir assaulted Smt. Dharamwati first and then Harbir with a Kirpan. Smt. Dharamwati received 4 incised wounds on her head, hand and fore-arm. These injuries had bled. Smt. Dharamwati admitted in cross-examination that blood from her injuries fell on the ground. Looking to the manner of occurrence alleged by the prosecution, it is but obvious that blood from her injuries must have fallen inside the Dukaria in which the incident took place. Jagdish Singh, the investigating officer, inspected the site on 9-3-1976. He did not find any blood in the pukaria. It will be noticed that Jagdish Singh was present at the time the report was submitted by Jai Prakash at the police station on 8-3-1976 at 9-15 a. m. He interrogated Jai Prakash and Sher Ali head constable at the police station. Then he went to the District Hospital where he interrogated Smt. Dharamwati, Harbans Singh and Km. Murli. There after he reached the village of occurrence and interrogated the persons of the vicinity. He could not interrogate the eye-witnesses named in the first information report. It is not understood as to why he did not make inspection of the Dukaria on 8-3-1976. In this connection averment may be made to the statement of Km. Murli. She clearly stated that after the occurrence the appellant had gone away after locking the Dukaria. It means that Jaibir appellant left the scene of occurrence immediately after the occurrence after locking his Dukaria. This conduct of Jaibir, if really the occurrence took place as alleged by the prosecution, is quite natural. Therefore, there was no question of wiping of the blood from the floor of the Dukaria. The position that follows is that as the investigating officer did not find any blood in the Dukaria, the place of occurrence is not free from doubt. Therefore, there was no question of wiping of the blood from the floor of the Dukaria. The position that follows is that as the investigating officer did not find any blood in the Dukaria, the place of occurrence is not free from doubt. (3) Undisputedly Sabha Chand (D W 1), uncle of the deceased and the appellant took Harbir injured and Smt. Dharamwati to the District Hospital Muzaffarnagar. It means that Sabha Chand must have seen the place where Harbir and Smt. Dharamwati received injuries. Sabha Chand has not come forward to support the prosecution. On the other hand he has come up on behalf of the appellant to depose that Harbir and Smt. Dharamwati were injured at about 8 or 9 a.m. in their chak and that Smt. Dharamwati told him that they were assaulted by some Sardars who were plucking sugarcane from their chak. In cross-examination he stated that Smt. Dharamwati did not allow him to lodge report and that she asserted that she would get report lodged after her nephews and relations had come up. (4) Jaibir moved application for bail on 23-3-76. In that application he clearly pleaded alibi. The prosecution, therefore, knew that even at the trial Jaibir appellant would plead alibi. To indicate that the plea of alibi was not true, Smt. Dharamwati stated 2 facts- (i) Harbir appellant came to her village in the evening of 5-3-1976 from Aligarh, that as her husband was away from the village the appellant continued to live in the village from the evening of 5-3-1976. Her husband Harbir returned to the village on 7-3- 976 at about noon time. It means that Jaibir remained in the village from the evening of 5-3-1976 up to the noon of 7-3-1976. (ii) Prior to 5-3-1976 Jaibir sent a letter to her husband that he would be head him. It means that Jaibir had intimated the deceased of his intention well before the date of occurrence. She got that letter, read over to her. It is said the letter was snatched by Tejpal. The above letter did not come on record. Besides, she made no mention of such a letter in the first information report or in her statement before the investigating officer. Not only this she did not question Jaibir when he came to his village on 5-3-1976. Nor she questioned him on 6-3-1976. The above letter did not come on record. Besides, she made no mention of such a letter in the first information report or in her statement before the investigating officer. Not only this she did not question Jaibir when he came to his village on 5-3-1976. Nor she questioned him on 6-3-1976. It will further be noticed that her husband Harbir came to his house on 7-3-1976 at noon time. She did not even tell Harbir that the appellant had sent such a letter to him. She did not even stop Harbir going away with Jaibir towards his Dukaria. The case of the prosecution is that Jaibir came to the house of Harbir and took him to his Dukaria for some talks. It is thus crystal clear that Smt. Dharamwati, with a view to contradict the plea of alibi and with a view to show that Jaibir had intentionally come to the village to commit the murder of her husband, invented the theory of a letter by the appellant to the deceased specifically telling him that he would come to kill him. (5) The prosecution has not examined a single person of the village of occurrence to depose that Jaibir remained in the village from 5th to 7th March, 1976. (6) Sri R. A. Khan (DW 2) was Principal, I. T. I, Aligarh in March, 1976. The President of India was to deliver a convocation address in the University on 13-3-1976. In that connection a helipad was built within the campus of his college. A rehearsal of a helicopter was to be performed on 8-3- 1976. Therefore, some arrangements were to be made by the principal. Sri Khan deputed appellant Jaibir and 2 other persons for making necessary arrangements in the evening of 6-3-1976. Sri Khan clearly stated that on 7-3-1976 the appellant was present within the college premises in connection with the arrangement from 8 to 11 A. M. On 10-3-1976 Jaibir made a written request to the principal to issue a certificate that he was present within the college premises on 7-3-1976. Sri Khan granted him a certificate to the said effect on 18-3-1976. At the time of his statement in the Sessions Court Sri Khan was Deputy Director, Training and Apprenticeship at Dehradun. As a principal of Industrial Training Institute he can easily be considered a responsible person. Sri Khan granted him a certificate to the said effect on 18-3-1976. At the time of his statement in the Sessions Court Sri Khan was Deputy Director, Training and Apprenticeship at Dehradun. As a principal of Industrial Training Institute he can easily be considered a responsible person. The suggestion of Sri Jitendra Nath, that Sri Khan had given false evidence for the sake of his subordinate, is not easily acceptable. The appellant was an instructor in the I. T. I. He was concerned with wireless matters' also. Therefore, his presence in the college premises on 7-3-1976 in connection with the arrangements is highly probable. There is no reason not to accept the statement of Sri R. A. Khan. 12. TAKING into consideration the above facts cumulatively Smt. Dharamwati cannot be considered as a wholly reliable witness. In view of this conclusion her testimony should be corroborated by some reliable or independent witness. Testimony of Km. Murli cannot be considered as a piece of evidence corroborating the evidence of Smt. Dharamwati. She was a child of about 8 years at the time of the occurrence. She could easily be tutored by her mother. She also stated that Tejpal assaulted her mother with a hammer. This part of her statement is wholly false. 13. THE prosecution has not examined any other eye-witness of the occurrence. Three persons Bikram Singh, Jagpat Singh and Ombir Singh besides Km. Murli and her brother Babu were mentioned in the first information report as eye-witnesses of the occurrence. The prosecution did not examine any of them, despite the fact that the investigating officer included their names in the list of witnesses given at the back of the charge-sheet. Ombir Singh was not produced because he was relation of Smt. Dharamwati. We are of the view that this was not a sufficient reason for the prosecution not to have examined Ombir Singh. Had Ombir Singh been examined he would have corroborated the testimony of Smt. Dharamwati. In that case the Court would have been in a position to determine whether reliance could be placed on his evidence or not. Bikram Singh and Jagpat Singh were not examined on the ground that they had intimated that they would not support the prosecution. The result is that no person other than child Murli was examined to corroborate the testimony of Smt. Dharamwati. Bikram Singh and Jagpat Singh were not examined on the ground that they had intimated that they would not support the prosecution. The result is that no person other than child Murli was examined to corroborate the testimony of Smt. Dharamwati. We have said above that the prosecution did not examine any person of the village of occurrence to depose that Jaibir appellant was seen in the village from 5th to 7th March, 1976. 14. THE result is that the testimony of Smt. Dharamwati is not corroborated any person who could be termed reliable or independent. First information report was lodged with delay. Therefore, the report cannot be taken as a piece of corroborative evidence. Smt. Dharamwati was examined by Dr. R. K. Jain on 7-3-1976 at 4.40 P. M. She had simple injuries Her condition was neither bad nor serious. She could easily lodge a report at police station Kotwali Muzaffarnagar. No reason has been given for not lodging report at the police station Kotwali on the date of occurrence. In view of the above we are of the opinion that reliance cannot safely be placed on the testimony of injured Smt. Dharamwati, who is not a wholly reliable witness. 15. FACT that Shrimati Dharamwati received injuries lends assurance to two things : (1) she was present at the time of occurrence, and (2) she would not leave the real assailant. But cases have come to light that even injured persons have not given a correct account and place of occurrence. Therefore, an injured witness has also to stand the test of credibility/reliability. Turning to the instant case, has Srimati Dharamwati not made a false attempt to implicate Tejpal, brother of her husband who died as a result of injuries sustained in the occurrence ; has Srimati Dharamwati not attributed a letter, which never saw light of the day, to another brother of her husband i.e. the appellant Jaibir which unequivocally indicated that he would come to the village to cut off the head of her husband ; has she not fixed the Dukaria of Jaibir as the place of occurrence from where neither blood could be had, nor signs of scraping-floor could be seen by the Investigating Officer. In the circumstances Srimati Dharam wati has not answered the test of credibility. In the circumstances Srimati Dharam wati has not answered the test of credibility. In the background of the fact that she made her husband to separate from his 3 brothers she could falsely implicate the brothers of her husband. Futile to add that report was lodged by her after inordinate unexplained delay during which she could web a case against the appellant and Tejpal. 16. AT the end we have also to remark that the investigating officer did not gather material to meet the plea of alibi, notwithstanding the fact that he knew from about 1 1/2 months before the submission of the charge-sheet that the appellant was pleading alibi. As the investigating officer had come to know that the appellant would plead alibi at the trial, he should have carefully investigated into this plea and gathered material to contradict the plea, if really it was untrue. For what we have found above, we are of the opinion that the case set up by the prosecution was not established against the appellant beyond any reasonable doubt and as such the conviction of the appellant cannot be sustained. 17. APPEAL is allowed and the conviction and sentence of appellant Jaibir under Sections 324 and 302 IPC recorded by the Additional Sessions Judge are set aside. 18. APPELLANT is in jail. He shall be set at liberty forthwith if not required in any other connection. Reference made by the Additional Sessions Judge for the confirmation of the sentence of death awarded to appellant is hereby rejected. Appeal allowed.