SI. JAFRI, J. ( 1 ) APPELLANTS Vijai Shanker Misra. Dashrath Misra and Akshaibar have filed this appeal against their conviction under section 302 I. P. C. 307/34 I. P. C. and 302/34 I. P. C. Accused Vijai Shankar Misra was convicted under section 302 I. P. C. and was sentenced to life imprisonment. He was further convicted under section 307 I. P. C. read with section 34 I. P. C. and sentenced to undergo 7 years R. I. ; whereas co-accused Dashrath Misra and Akshaibar were convicted under section 302 I. P. C. read with section 34 I. P. C. and sentenced to life imprisonment and they were further convicted under section 307 I. P. C. and sentenced to undergo R. I. for 7 years. All the sentences to run concurrently. The appellants were as such convicted and sentenced by the judgment dated 4. 6. 1977 of Sri G. D. Chaturvedi, 2nd Additional District and Sessions Judge Varanasi. ( 2 ) A revision was also filed against the appellants for the enhanccment of sentences by PW I Ram Shromani Misra and the said revision was admitted and notices were issued to the appellants. ( 3 ) THE occurrence is alleged to have taken place on 17. 4. 1976 at about 8 p. m. in village Boochi, Police Station Phoolpur Distt. Varanasi the house of deceased Dhruv Nath who was the cousin of PW 1 Ram Shromani and while the deceased Dhruv Nath, PW2 Prahlad Misra, the brother of PW 1 Ram Shromani, Subhash Chandra, Ram Dular were sitting and talking at the door of Dhruv Nath Misra after returning from the court where they had gone to attend 107 case, the appellants Vijai Shanker Misra, Dashrath Misra and Akshaibar reached there and at the exhortation of Akshibar, the remaining appellants Vijai Shanker Misra and Dashrath Misra armed with Gadansha and spear respectively, had assaulted the deceased Dhruv Nath Misra and PW 2 Prahlad Misra and caused injuries to them. PW 1 Ram Shromani who was at that time inside his house, came out on hearing the noise and found Dhruv Nath Misra and his brother PW 2 Prahalad Misra in injured condition. The witnesses Ram Chandra Misra Lal Bahadur and other persons of the village also arrived at the scene of occurrence, whereupon the appellants made good their escape with their weapons. The witnesses Ram Chandra Misra Lal Bahadur and other persons of the village also arrived at the scene of occurrence, whereupon the appellants made good their escape with their weapons. It is said that the said occurrence was seen by witnesses in the light of lantern which was burning at the door of the deceased Dhruv Nath. It is further alleged that Dhruv Nath Misra shortly after receiving the injuries, sat down and dictated the first Information Report EX. Ka 1 to PW 1 Ram Shromani Misra which was read over to him and, thereafter, Dhruv Nath Misra put his thumb impression on the same and then Ram Shromani Misra took both the injured on a cart upto Mangali Bazar with the help of other residents of the village and from there they were taken to police station Phoolpur on a Truck, where aforesaid the report Ex ka 1 handed over to Head Constable P W 5 Kremdev Yadav by PW 1 Shromani and on the basis of the aforesaid report Ex ka 1, the aforesaid head constable prepared a chik report Ex ka 6 at 12. IOA. M. on 18. 4. 1976 and registered a case under Section 301/34 IPC against the appellants in the General Diary of the Police Station Phoolpur which is Ex ka 7 and sent the injured to SS. PG Hospital Varanasi for medical Examination and treatment. PW 10 Ahsanullah A. S. I. was present at the Police station when the aforesaid report of the occurrence was lodged at 12. 20 a. m. on 18. 4. 76 and both the injured were sent to S. S. P. G. Hospital Varanasi along-with PW 1 Ram Shromani Misra, Sri Ahsaullah A. S. I. left. The Police station Phoolpur for the scene of occurrence at about 1 a. m. on 18. 4. 76 and reached the village Boohi in the morning at about 6 a. m. There, he recorded the statements of witnesses Ram Chandra Misra, Lala Bahadur, Ram Lakhan, Dharm Jeet and PW 1 Ram Shromani Misra and he then inspected the place of occurrence and prepared the site plan which is Ex ka 20. He also found blood near the scene of occurrence and he took stained andunstained earth from there, and prepared FARD exka 2. He found two cots at the place of occurrence. He also found blood near the scene of occurrence and he took stained andunstained earth from there, and prepared FARD exka 2. He found two cots at the place of occurrence. He also found one lantern on the Chabutra of the deceased Dhruv Nath which is Ex ka 2 and prepared its recovery memo Ex ka 3 and handed over the same in the SUPARDAGI of the brother of Dhruv Nath, He then took the search of the house of appellants Vijai Shanker Misra and Dashrath and from their houses, he recovered one Lathi on which blood spots were found and he prepared its recovery memo which is Ex, ka. 5 PW 10 A. S. I. Ashanullah, there after, got information that the appellants Vijay Shanker Misra and Dashrath were concealing themselves in a sugercane field on the eastern side of village Boochi and he left for the field and arrested appellants Vijai Shanker Misra and Darshnath from that field and then he returned to the police station along with the appellants and deposited the recovered articles from the scene of occurrence in the Malkhana of the - police station and also lodged the appellants Vijai Shanker Misra and Dasrath Misra in the Lock up of the Police Station PW 10 Assanullah, A. S. I. again visited the village Boochi 19. 4. 76 and recorded the statements of Subhash chandra and Ram dular. He also searched for the accused Akshaibar but he was not found there. Then, he left for S. S. P. G. Hospital Varanasi and there, he recorded the statement of PW 2 Prahlad who was admitted there in the hospital and there he was informed that other injured Dhruv Nath was sent from S. S. P. G Hospital to B. H. U. Hospital Varanasi for treatment as his condition/further deteriorated. ( 4 ) DHRUV Nath injured succumbed to his injuries on 1. 5 76 at the B. H. U. Hospital and PW 9 Aditya Gin S. I. Police station Bhelupur. Proceeded to the Hospital on 2. 5. 76 at 6. 30. a. m. and took the body of Dhruv Nath in his custody and prepared inquest report etc and sealed the dead body and sent it to the Mortuary through PW 11 constable Shambhunath Gin and Jaswant Singh Gin for post mortem examination. PW 8 Dr. Proceeded to the Hospital on 2. 5. 76 at 6. 30. a. m. and took the body of Dhruv Nath in his custody and prepared inquest report etc and sealed the dead body and sent it to the Mortuary through PW 11 constable Shambhunath Gin and Jaswant Singh Gin for post mortem examination. PW 8 Dr. S. N. Srivastava, conducted the post mortem examination of the deceased Dhruv Nath on 2. 5. 76 at 3 p. m. and prepared the post mortem report Ex ka 14. ( 5 ) ON 9. 5. 1976 PW 10 Ahsanullah got information that appellant Akshaibar has surrendered in the court of Chief Judicial Magistrate Varanasi on 3. 5. 76 and he then went to the jail and recorded the statement of appellant Akshaibar. He also came to know the same day that injured Dhruv Nath succumbed to his injuries on 1. 5. 76 in B. H. U. Hospital and then On 14. 5. 76 vide G. D. 11 of the police station Phoolpur, the aforesaid case under section 307/34 IPC was converted to Section 302/324 IPC The said GD entry of police station Phool pur is Ex ka22. PW 10 Ahsanullah, A. S. I. admitted in his cross examination that though the case was registered at Police station Phoolpur in his presence but he did not record the statements of the two injured as they were being sent to the Hospital for treatment. He also stated that after 9. 5. 76, the investigation of the case was taken over by PW 6 Udai Narain Singh, station officer of Police station Phoolpur. ( 6 ) PW 6 Udai Nrain Singh who was the station officer of Police Station Phoolpur, took investigation of the case from PW 10 Ahsanullah A. S. I. on 29. 5. 76 and sent the case property to the Chemical Examiner Agra for analysis and after completing the investigation, submitted charge-sheet Ex ka 9 against the appellants in the Court of Chief Judicial Magistrate, Varanasi. ( 7 ) THE appellants pleaded not guilty to the charge framed against them by the trial court and stated that they were falsely implicated in this case on account of enmity. ( 8 ) PW 7 Dr. B. P. Singh examined the injuries of the deceased Dhruv Nath Misra on 18. 4. 76 at 1. 50 A. M. and prepared Injury report Ex ka 10. ( 8 ) PW 7 Dr. B. P. Singh examined the injuries of the deceased Dhruv Nath Misra on 18. 4. 76 at 1. 50 A. M. and prepared Injury report Ex ka 10. The deceased Dhruv Nath had received the following injuries. 1. Incised wound 15cm X 8cm brain deep on left side of head (blood clot and brain matter coming out from the wound ). 2. Incised wound 10 cm X 7cm X bone deep on the upper part of the left scapula. According to the opinion of Doctor both the injuries of Dhurv Nath are caused by sharp instrument. Dr. B. P. Singh PW 7 had also examined the injuries of PW 2 Prahlad Misra at 2 a. m on 18. 4. j 976 and he prepared Injury Report Ex ka 12. He found the following injuries on his person. 1. incised wound 1 cm x 1/4 cm X muscle deep on the part of right shoulder on the lateral part of right clavical. 2. Punctured wound 1 cm X 1/4 cm X depth not probed on the left side of chest I cm above left nipple with sub out emphysema present. According to the opinion of the Doctor, both the injuries were caused by sharp weapon. PW 8 Dr. S. N. Srivastava, conducted Post mortem examination on the dead body of Dhruv Nath on 2. 5. 1976 at 3. 50 P. M. and prepared postmortem report Exka. 4. He had found the following anti mortem injuries: 1 Stitched wound 14cm long semi lunar extending from the mid line to the left ear (15 stainless steel stitches. 2. Infected wound 10cm X 3cm X muscle at the back of left shoulder 3. Bed shore 4. 1/2cm X 4cm at the back of (LS) 4. Septic wound 2cm X 1. 1/2cm X muscle at the front and root of neck only two stitches present at the upper and lower pale. According to the opinion of the doctor, death was caused due to haemorrhage and shock as a result of injuries. ( 9 ) WE have heard Sri AD Gin, learned counsel for the appellants and Sri Jitendra Kumar learned Government Advocate for the state at a great length and we feel ourselves unable to sustain conviction of the appellants recorded by the Trial Court. ( 9 ) WE have heard Sri AD Gin, learned counsel for the appellants and Sri Jitendra Kumar learned Government Advocate for the state at a great length and we feel ourselves unable to sustain conviction of the appellants recorded by the Trial Court. ( 10 ) THE prosecution examined 11 witnesses in support of the case out of them PW 2 Prahalad PW 3 Ram Dular and PW 4 Dhruv Nath Ion of Ambika are the eye witnesses. PW 3 Ramdular and PW 4 Dhruv Nath, son of Ambika were not relied upon by the Trial court and they were misbehaved PW I Ram Shromani who is the brother of PW 2 Prahalad Misra and also a cousin of deceased Dhruv Nath, is the scribe of the report Ex ka 1, which was dictated to him shortly after the aforesaid occurrence by the deceased Dhruv Nath in a sitting posture and according to him, after taking down the aforesaid report, he read over the said report to the deceased and the deceased had put his thumb impression upon the same. ( 11 ) IT is alleged that there was enmity between Vijai Shanker appellant and the deceased Dhruv Nath. The accused Vijai Shanker Mishra had prosecuted Mangla alias Bachan Ram, Ramshkal and Ram Tahal under section 323/ 324 I. P. C. in the year 1974 in which Dhruv Nath was the witness for Vijai Shanker appellant, but he refused to give evidence f9 him and this led to enmity between Vijai Shanker Mishra and the deceased Dhruv Nath. Besides this, Vijai Shanker Mishra appellant had filed another case under section 436/323 against Mangla in which Dhruv Nath deceased was also witness for Vijai Shanker Mishra appellant but the deceased had filed affidavit in the court in favour of Mangla. It was further stated that the police had also challenged Dhruv Nath deceased and other persons of the village or one side and Vijai Shanker Mishra and others on the other side under section 107 Cr. P. C. prior to the occurrence and 17. 4. 1976 was fixed for hearing in the aforesaid case under section 107 Cr. P. C. in the Court of A. D. M. (City) Varanasi in which Dhruv Nath deceased, Ram Shromani Mishra and few others had come to the Court on 17. 4. P. C. prior to the occurrence and 17. 4. 1976 was fixed for hearing in the aforesaid case under section 107 Cr. P. C. in the Court of A. D. M. (City) Varanasi in which Dhruv Nath deceased, Ram Shromani Mishra and few others had come to the Court on 17. 4. 1976 from one side and the accused Vijai Shanker Mishra and Akshaibar also attended the Court of the aforesaid Magistrate on the aforesaid date and according to the prosecution allegations both the parties returned to their village after attending the court of Magistrate on the date of occurrence and it is then said that at about 8 P. M. on the same day while the deceased Dhruv Nath along with Subhash PW 3 Ramdular and PW 4 Dhruv Nath son of Ambika, Ram Shanker and PW 2 Prahlaad were sitting and talking at the door of Dhruv Nath, the alleged-occurrence took place in which Dhruv Nath deceased and PW 2 Prahalad Mishra had received injuries by the hands of the appellants Vijai Shanker Mishra and Dashrath Mishra on the instigation of Aksha ibar. ( 12 ) FROM the above, it is clear that, there was enmity between the parties from before the occurrence of this case and proceedings under section 107 Cr. P. C. were also going on between them. Enmity is a double edged weapon which cuts both ways and as such there may be strong motive for the accused to commit the offence and at the same time the accused may also be falsely implicated by the aggrieved party on account of enmity. ( 13 ) THE learned Sessions Judge after discarding the evidence of PW 3 Ramdular and Dhruv Nath Son of Ambika had placed reliance upon the statement of PW 2 Prahlad Mishra, who is the injured witness and had also placed reliance upon report Ex ka 1 by treating the said report as dying declaration. He also relied upon the statement of PW 1 Ram Shromani Mishra who had stated that shortly after the occurrence, the deceased Dhruv Nath had dictated him the report Ex ka I while in sitting posture and after writing the said report on the dictation of the deceased Dhruv Nath, PW 1 Ram Shromani, had put the thumb impression of deceased on the said report Ex ka 1 after reading over the report to the deceased. ( 14 ) ADMITTEDLY in this case, as stated above, there was enmity between the appellants and the complainant party from before the occurrence and therefore, the evidence of PW 2 Prahlad Mishra and PW I Ram Shromani Mishra requires strict scrutiny for placing reliance on their testimony as both the witnesses are partisan as there are closely related to the deceased. No doubt, PW 2 Prahlad Mishra is an injured witness but merely on account of the presence of injuries on his person, he cannot be treated as a wholly reliable witness, if his evidence fails to stand the test of reliability. The presence of the injury on the person of the witness does not give any guarantee about his truthfulness. ( 15 ) IT is argued by the learned defence counsel that the deceased could not have spoken after receiving the injuries as he must have become unconscious and as such the report Ex ka 1 could not be dictated to PW I Ram Shromani by the deceased Dhruv Nath. In this connection, the learned counsel for the appellant had referred to the statement of PW 7 Dr. B. P. Singh who had admitted in his cross examination that the deceased Dhruv Nath would have become semi unconscious after receiving the injuries and as such he could not give coherent statement. PW 7 B. P. Singh further stated that left part of the head of the deceased Dhruv Nath (injury no. 1) was cut and brain matter had come out from the said wound and beneath also the brain was found cut, which is apparent from the post mortem report. Dr. B. P. Singh had also stated that speech centre of the right handed man is found on the left side of the head. He had also admitted that on account of cutting of the brain, the working of the brain must have been affected and as such the injured after receiving the injury must have become semi unconscious. He had further stated that in, semi conscious condition, sometimes the injures responds to painful stimuli but the injured cannot give coherent statement and he also cannot talk coherently. He has further stated that Dhruv Nath deceased after receiving the injury, would not have been in a position to speak dr. He had further stated that in, semi conscious condition, sometimes the injures responds to painful stimuli but the injured cannot give coherent statement and he also cannot talk coherently. He has further stated that Dhruv Nath deceased after receiving the injury, would not have been in a position to speak dr. B. P Singh has further stated that app-aphsic means what the injured cannot speak and he had said that long as injured Dhruv Nath remained in the Hospital, was not at all in a position to speak. Dr. Singh had further stated that aphsic condition of the injured developed on account of cutting of the left temporal and the injured must have also suffered from cerebral ocederma and as such this condition develops on account of the head injury. Dr. Singh further stated that the deceased after receiving Injury No. 1 would not be in a position to sit down and he must have fallen on the ground. Dr. Singh further admitted in reexamination by the learned state counsel that from the nature of the injury, the injured Dhruv Nath must have come under shock and in semi unconscious condition. He has further stated that it is difficult to say that how long before the medical examination, the injured would have remained conscious but it is more probable to the extent of 99% that the deceased immediately after receiving the injury must have fallen unconscious. Dr. Singh has further stated that the head injury of Dhruv Nath was very serious and the patient must have gone under shock immediately after the receiving the said injury. ( 16 ) P. W 8 Dr. S. N. Srivastava who conducted the post mortem examination of the deceased Dhruv Nath had stated in his evidence that head injury of the deceased was of a very serious nature. He had found a laceration in the brain which was very long and broad. He has further stated that the speech centre lies beneath the outer portion of the brain. He had further found the left side of the brain lacerated. He had found a laceration in the brain which was very long and broad. He has further stated that the speech centre lies beneath the outer portion of the brain. He had further found the left side of the brain lacerated. He also found the left side of the brain of the deceased Dhruv Nath lacerateds and as such speech centre would have been affected and on account of the injury, the brain could have been dislodged to some extent and in view of the length and breadth and serious nature of the injury of the deceased, there might have been dislodging of the brain of the deceased and on account of dislodging of the brain, the speech centre may not have been affected but it is more probable that the brain centres of the deceased must have been affected and as such, it is more probable that the speech centre of the deceased must have been affected and as such the speech centre of the deceased had become affected, then the deceased could not have spoken coherently and further, he stated that on account of the nature of the injury the deceased might have become semi unconscious but there is more probability in this case that on account of the aforesaid injury, the deceased could not have spoken at all after the said injury. ( 17 ) AFTER thoroughly examining the evidence of both the doctors PW 7 RP. Singh and PW 8 S. N. Shrivastava, we are of the view that the deceased Dhruv Nath after receiving the head injury which was of a very serious nature, could not have dictated the report Ex ka 1 to PW I Ram Shromani M is h ra. ( 18 ) ACCORDING to the statement of PW 1 Ram Shromani Mishra, the deceased Dhruv Nath had read upto Class vth and he could write and sign in Hindi. PW 1 Ram Shromani Mishra also admitted that the deceased used to do his usual work by his right hand. It would be noted that there was no injury on the right hand of the deceased Dhruv Nath either in the report or in the post mortem report and, therefore, the presence of alleged thumb impression on Ex. ka 1 of the deceased Dhruv Nath instead of his signatures, also creates doubt about the genuineness of the thumb impression on Ex. ka 1. ka 1 of the deceased Dhruv Nath instead of his signatures, also creates doubt about the genuineness of the thumb impression on Ex. ka 1. Moreover, it was admitted by PW 1 Ram Shromani Mishra that the deceased Dhruv Nath used to do his work by the right hand and therefore on account of the cut injury on the left side of the head of the deceased, the speech centre of the deceased must have been affected resulting in semi unconsciousness of the deceased immediately after receiving the injury on the head and, therefore. it is again highly doubtful that after the speech centre of the deceased was affected, the deceased could have spoken and dictated the FIR Ex ka 1 coherently to PW 1 Ram Shromani Mishra, It was further submitted by the learned counsel for the appellants that the entire contents of FIR Ex ka I is written in the first person but there is also mention of the words Dhruv Nath Putra Rama Shanker by the deceased for himself. This shows that F. I. R. was not dictated by the deceased Dhruv Nath. A perusal of the F. I. R. Ex ka 1 shows that in the 12th sentence, there are words DHRUV NATH PUTRA RAMA SHANKER KO GAOANSE SE MARA and it there fore, shows that a person while dictating the F. I. R. to the scribe in the First person all of a sudden mentions himself in the third person as DHRUV NATH putra Rama Shanker creates strong suspicion about the bonafides of the First Information report. It was further contended by the learned counsel for the appellant that in the First Information Report Ex ka 1, there appears to be double thumb impression of the deceased and, there fore, it shows that they are not genuine thumb impression of the deceased as the thumb have become blurred so that it could not be specifically compared by the expert with the admitted thumb impressions of the deceased from some other documents we have carefully examined the alleged thumb impression of the deceased on Ex ka 1 with the help of magnifying Glass and we are of the view that the thumb impressions are blurred. It may further be noted that PW 1 Ram Shromani Mishra has also admitted in his evidence that he first put the thumb impression of the deceased immediately after writing Ex ka 1. Shortly after the occurrence in the village but. on reaching the police station with the injured, he had put another thumb impression of the deceased on the earlier thumb impression on Ex ka I on the direction of PW 5 head constable Ramdev Yadav has he earlier thumb impression was faint. However, PW 5 Ramdev Yadav head constable had denied in his evidence that he directed the PW I Ram Shromani Mishra at the police station to put second thumb impression on the earlier thumb impression of the deceased. Further more, from a close perusal of the first Information Report EX. ka 1, it will be seen that the thumb impression of the deceased is affixed on the writing in Hindi Nishan ANGOOTHA OHRUVANATH PUTRA RAMA SHANKER MISHRA adjacent to the word PRAPTHI written in Hindi. This 4/5 also creates doubt regarding the tumb impression of the deceased Dhruv Nath on the first Information report it may further be noted that there is sufficient space between the lines of the top of the report Ex ka 1 but the space between the lines, becomes narrower and narrower as the writing goes down below upto the alleged thumb impression of the deceased and, therefore it appears that some thumb impression was taken on the blank paper and subsequently while writing F. I. R. Ex ka 1 the space from the top to downward upto the thumb impression had to be narrowed by writing the contents of the F. I. R. and this was the reason that space between the lies from top to bottan upto the alleged thumb impression of the deceased had become gradually narrower. Furthermore, there is over-writing in digit 8 in date 18. 4. Furthermore, there is over-writing in digit 8 in date 18. 4. 76 written in Hindi at the bottom of Ex ka I It is clear that digit 8 had been written on figure 7 in a different ink and when the attention of the PW 1 Ram Shromani was drawn to this fact, he stated that he himself wrote down figure 8 on figure 7 on the asking of PW 5 Ramdev Yadav, head constable at the police station Phoolpur but PW 5 Ramdev Yadav head constable had emphatically denied that he had directed the PW I Ram Shromani for making the above over writing on figure 7 to figure 8 and, therefore, on account of the over writing in the date, the time as to when the F. I. R. Ex ka 1 was scribed by PW 1 Ram Shromani is also suspicious, It further be noted that Chithi Mzroobi of deceased Dhruv Nath Mishra and also of PW 2 Prahalad Mishra bears the date 17. 4. 76 on the back side of injury report Ex ka 10 and Ex ka 12 after the signature of clerk constable Kamla Kant Upadhiya and S. I. Ramjanam Singh. The signatures of clerk constable Kamla Kant Upadhiya and S. I. Ramjanak Singh were identified and proved by PW 5 Ramdev Yadav. It may be noted that the chik report Ex ka 6 was prepared at. the police station at 12. 20 A. M. on 18. 4. 1976 on the basis of Ex ka 1 and also the GD entry Ex ka 7 was prepared thereafter, which shows that the Chithi Mazroobi Tof both the injured and the deceased was then, prepared by Clerk constable Kamal Kant Tripthi at the police station, but the Chithi Mazroobi of both the injured Dhruv Nath and PW 2 Prahlad bears the date 17. 4. 76 which clearly shows that both the injured reached the police station on 17. 4. 76 and as such it appears that the injured were brought shortly after the occurrence on a truck to Police Station Phoolpur which lies at a distance of 6 miles from village Boochi and aftea preparation of the Chithi Mazroobi on 17. 4. 4. 76 which clearly shows that both the injured reached the police station on 17. 4. 76 and as such it appears that the injured were brought shortly after the occurrence on a truck to Police Station Phoolpur which lies at a distance of 6 miles from village Boochi and aftea preparation of the Chithi Mazroobi on 17. 4. 76 by clerk constable Kamal Kant Upadhiya both the injured were sent to the Hospital by Pw 5 Ram Dev Yadav for medical treatment at Varanasi and the check register of cognizable offences and the general diary of police station were kept open and subsequently after due consultation, Ex ka 1 was scribed by P N I Ram Shromani Mishra and, then, the chik report Ex: ka 6 was prepared at the petitioner station on 18-4-76 at 12. 20 A. M. and also the case was registered in the GO entry Ex: ka 7 on the basis of the Chik report at 12. 20 a. m. on 13-4. 76 by P. W 5 Ram Dev Yadav, PW 5 Ramdev Yadav hid also admitted in his evidence that tae written report Ex ka I was than by him from Daruvnath when he had come at the police station in injured condition and there is also mention in to the GD Ex: ka 7 that PW 5 Ramdev Yadav had got the report Ex: ka I from injured Dhruv Nath but according to, the statement of Ram Shromani Mishra who claims to have gone to the police station along with the two injured and others, he had handed over the report Ex: ka 1 to the head Constable PW 5 Ramdev Yadav and then he accompanied the injured to the Hospital at Varansi. It may further be noted that PW 10 Ahsanullah A. S. I. the first Investigating officer, had stated in his evidence that he reached the Village Boochi for investigation at about 6 a. m. on 18-4-76 and there he recorded the statement of witnesses including Ram-Shromani Mishra, and it is, there fore, highly doubtful that PW 1 Rain Shromani Mishra had accompanied the injured Dhruv Nath and Prahalad to the police station and had handed over the report Ex ka Ito PW 5 Ramdev Yadav and had accompanied the injured to the hospital at Varanasi. ( 19 ) IT may further be noted that PW 1 Ram Shromani Mishra who claims himself to be the scribe of FIR Ex: ka 1 is the brother of PW 2 Prahalad and also a cousin of deceased Dhruv Nath. He has admitted that prior to the occurrence of the present case, the appellant Vijai Shanker Mishra had got registered a case against him under section 307/324 I. P. C. for causing incised injury to his daughter. He had further admitted that Vijai Shanker Mishra had also filed another case against him for setting fire to his property and at the time of the present occurrence. both the aforesaid cases were pending in the court against him PW 1 Ram Shromani is thus, not only partisan witness but he is also enemical against the appellants and his claim about the authorship of the first information report as scribe shortly after the occurrence in village Boochi, is not at all believable in view of the clinching and convincing evidence of PW 7 Dr. B. P. Singh and PW 8 Dr. S. N. Srivastava which have already been discussed above. Moreover, the admission of PW 6 Head constable Ramdev Yadav that he had got the written report Ex ka I from the injured Dhruv Nath at the police station, again creates doubt about the preparation of the report Ex: ka 1 by PW 1 Ram Shromani Mishra in village Boochi shortly after the occurrences on the dictation of the deceased Dhruv Nath and handing aver of the same to PWS Ramdev Yadav by him at the police station. Moreover, the claim of PW 1 Ram Shromini Mishra that he had also accompanied both the injured to police station and then to the Hospital at Varanasi and had remained there at Varanasi with the injured, is also falsified by the statement of PW 10 Ahsanullah A. S. I. who had stated that he recorded the statement of Ram Shromani Mishra PW 1 under section 161 Cr. P. C. on reaching the place of occurrence in village Boochi at about 6 a. m. on 16-4-76 and therefore, P. W. I Ram Shromani Mishra is not at all reliable witness and as such his evidence is of no avail to the prosecution. ( 20 ) NOW we are left with the sole evidence of PW 2 Prahalad Mishra, who is an injured witness. ( 20 ) NOW we are left with the sole evidence of PW 2 Prahalad Mishra, who is an injured witness. He is a young boy of 18 years and a student 01 class x, and is the brothers of PW 1 : Ram Shromani Mishra and also a cousin of deceased Dhruv Nath and therefore, he is not only partisan witness but also enmical to the appellants. In order to prove the prosecution case, quantity of evidence is not at all needed but the quality of witness is taken into consideration for proving the charge against the accused It is no doubt correct that if a witness is injured, then his presence on the spot at the time and place of occurrence is prima facie established but for basing conviction solely on the evidence of an injured witness, if is necessary that the injured witness must be held to be a wholly reliable witness. Where in a case there is the sole evidence of the injured witness against the accused and if it is shown that there is material infirmity and falsity in some part of his evidence then it will not be at all safe to convict the accused solely on the evidence of the injured witness relying upon the eyewitnesss accounts given by him without independent corroboration by material evidence. ( 21 ) IN this case, it may be noted that the statement of PW 2 Prahalad Mishra that shortly after the occurrence, the deceased Dhruv Nath had detailed report Ex ka 1 to PW 1 Ram Shromani, has been found to be false and is not at all believable in view of the clinching and convincing medical evidence and, therefore PW 2 Prahalad Mishra is not at all a wholly reliable witness. Moreover, the medical evidence in this case as discussed above, shows that the deceased Dhruv Nath after receiving the head injury, could not have dictated the report Ex ka 1 to PW Ram Shromani as he had become semi unconscious and speechless after receiving the head injury. Further the chik report Ex ka 6 said to be prepared at 12. 20 a. m on 18-4-76 and the G. D entry Ex ka 7 of PS Phoolpur also appear to be anti timed and as such the investigation in this case, does not appear to be above board. Further the chik report Ex ka 6 said to be prepared at 12. 20 a. m on 18-4-76 and the G. D entry Ex ka 7 of PS Phoolpur also appear to be anti timed and as such the investigation in this case, does not appear to be above board. Therefore, in such a situation, the evidence of PW2 Prahalad Misra, though injured witness, cannot be implicitly relied upon for the conviction of the appellants without independent corroboration which is lacking in this case. It has also been established in this case that the evidence of Prahlad PW 2 regarding the dictation of report Ex ka 1 to PW 1 Ram Shromani is false and no reliance can be placed on this part of his evidence regarding the dictation of First Information report Ex ka 1 by Dhruv Nath to PW 1 Ram Shromani Mishra and PW 2 Prahalad Misra cannot be treated as a wholly reliable witness and as such it will not be at all safe to place implicit reliance on his evidence without independent corroboration which is lacking in this case. ( 22 ) IN view of the facts and circumstances of the case as discussed above, we hold that the prosecution has failed to prove its case against the appellants. ( 23 ) IN the result, the appeal is allowed. The conviction of the appellants under section 302 I. P. C. , 307 I. P. C. 302/34 I. P. C. and 307/34 I. P. C. is set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. ( 24 ) CRIMINAL Revision no, 999/1977 filed by PW 1 Ram Shromani Mishra against the appellant for enhancement of sentence is devoid of any merit and is there fore, dismissed. Appeal allowed. .