JUDGMENT 1. Both these appeals arise out of the same case and same judgment and, therefore, with the consent of the parties and for their convenience they have been heard together and are being disposed or by this common Judgment. 2. On 24.5.1977 at about 8 P.M. P.W.12 Ramesh Prasad Thakur, informant along with deceased Bachha Thakur. P.Ws. 6, 7 and 11 were taking betel at betel shop on National Highway Chawk at Muzaffarpur town. While they were taking betel 8 to 10 persons including appellants Ram Nath Prasad Gupta and Basudeo Sah came there armed with lathi and started abusing the informant and his companions. A constable was there on the road who asked them not to behave like that and thereafter those ten persons moved aside towards north. The informant and his companions also went near a saloon. Soon thereafter the informant and his companions left for their home. On the way they met Chandra Mohan Thakur (P. W. 8) who also accompanied them. While the informant and his companions were on the road near a transformer, a mob of about 50 persons came in front of them and another mob also came from behind. Both the mobs were armed with lathi, bhala, pharsa etc. The informant identified these appellants in the mob. The members of the mob were using the abusive language to which the informant and his companions protested. Appellant Ramchandra Rai then asked to kill them. Saying this, appellant Ramchandra Rai himself fired his gun which could hit Bachha Thakur who fell down and died. Appellant Mahendra Rai and Bishwanath Rai assaulted the informant with bhala and pharsa. Chandra Mohan Thakur (P.W.4) was assaulted by appellant Ramchandra Rai and Asharfi Rai with lathi and Chandeshwar Rai assaulted him with pharsa. The informant and Chandra Mohan Thakur ran towards Bhagwanpur Chhati and entered into the shop of one Rambilash Sah (not examined), The members of the mob chased them upto that shop of Rambilash Shah. In the meantime, the informant escaped out from the back door of the shop of Rambilash Shah and got on the roof of the house of one Anup Shah and concealed himself there. While he was concealing on the roof, he saw one police jeep passing in front of the shop of Anup Sah. Soon thereafter he saw another police jeep going there and then he cried 'bachao bachao’. While he was concealing on the roof, he saw one police jeep passing in front of the shop of Anup Sah. Soon thereafter he saw another police jeep going there and then he cried 'bachao bachao’. Hearing this police jeep stopped in front of the house of Anup Shah and took him down from the roof. The police recorded the statement of the informant which is Ext. 2. On the basis of the said statement, a case was registered. The informant and other injured persons were examined by the Doctor. The post mortem examination was conducted on the dead body of deceased Bachha Thakur by Dr. Jitendra Prasad Saxena (P.W.15). After completing investigation charge-sheet was submitted against these appellants. 3. After usual commitments, as required under the law, these appellants were put on trial wherein all 17 witnesses were examined on behalf of the prosecution. The appellants pleaded their innocence and denied the allegation. One defence witness was also examined on their behalf. It also appears that appellant Mohan Prasad Gupta alias Ramnath Prasad Gupta had also received some injuries and had lodged a case in that regard while he was in Sadar Hospital Muzaffarpur, which is Ext. A. 4. After considering the entire evidence, the learned trying Court convicted appellant Ramchandra Rai under section 302 of the Indian Penal code (the Code) and sentenced him to undergo rigorous imprisonment for life. Other appellants were convicted under section 302/149 of the Code and each of them has been sentenced to undergo rigorous imprisonment for life. Appellant Ramchandra Rai, Asharphi Rai and Chandeshwar Rai have been further convicted under section 323 of the Code but no separate sentence was awarded to any of them under this court. 5. Learned counsel appearing for the appellants has challenged the order of conviction on the ground that the first information report was not recorded on 24.5.1977 at 11-30 P. M., as said by the prosecution, rather it was subsequently recorded after due deliberation and, therefore, it was sent after with great delay to the court of Chief Judicial Magistrate concerned, it has been further argued that the medical evidence does not support the oral evidence of the eye-witnesses on the point of assault. 6. P.W.3 is Dr. Md. Najmul Hoda. He had examined Ramesh Prasad Thakur (P.W.12) informant on 25.5.1977 and found the following on his person “– “(1) Lacerated wounds. 6. P.W.3 is Dr. Md. Najmul Hoda. He had examined Ramesh Prasad Thakur (P.W.12) informant on 25.5.1977 and found the following on his person “– “(1) Lacerated wounds. (a) 1"x '/2 'x Scalp deep on the occipital region. (b) l"x1/2"x Skin deep on the occipital upper one third and medical surface of left tibia 2" below the tibial tuberosity. (2) Swelling of 1/2" diameter on the anterior and lateral surface of leg forearms in the middle " All the injuries were caused within 5 to 6 hours from the time of examination and were caused by hard blunt substance like lathi. P.W.14 is a other doctor who had examined Chandra Mohan Thakur on 25.5.1977 at 9-20 A.M. and found the following injuries:– (a) Bruise 6"x2" on back of chest an left side below scapular region. (b) Abrasion 1-1/2"x 1/2" on nose. (c) Swelling on the upper lips. (d) Bruise 4"x2" on left side of the chest above the nipple." All the injuries were simple in nature and were caused by hard blunt substance like lathi. Age of the injury was within 18 hours. P.W.15 is the third Doctor who had conducted post mortem examination on the dead body of the deceased Bachha Thakur on 25.5.1977 at 3 P.M. and found the following injuries :– (1) Abrasion l"x1/4" on the right side at the forehead above the eye-brow. (2) (a) Perforating wound 1/2" circular on the right side of chest in the region of lower riots in the mid axillary line. Margins black 8”1/2” above the waist. (b) Wound of exit 1/2" circular on the left side of chest in the mid axillary line 8” above the waist. (3) (a) Wound of entry 1/2" circular on the media aspect of the left forearm 1/2" below the elbow joint. Margins inverted and. (b) Wound of exit 1/2" circular on the lateral aspect of left forearm 1/2" below the elbow joint. Margins inverted and irregular ". All the injuries were ante mortem in nature. Injury No.1 was caused by some hard blunt substance or might have been caused by fall. Injury Nos.2 and 3 appeared to have been caused by firearm and by one shot. According to him stomach contained undigested food which might have been taken one hour before the death. All the injuries were ante mortem in nature. Injury No.1 was caused by some hard blunt substance or might have been caused by fall. Injury Nos.2 and 3 appeared to have been caused by firearm and by one shot. According to him stomach contained undigested food which might have been taken one hour before the death. The aforesaid medical evidence lends support to the oral evidence of the eye-witnesses to indicate that the deceased died of fire-arm injury and P.Ws.4 and 12 also received some injuries. Now questions remain to be considered as to whether they received injuries in the manner as alleged by the prosecution. 7. There is consistent evidence that appellant–Ramchandra Rai fired two rounds which could hit the deceased. The informant was assaulted by appellant Mahendra by Bhala and with Pharsa by Bishwanath. P.W.4 was assaulted by Asharfi and Ramchandra Rai with lathi and Chandeshwar Rai assaulted him with pharsa. In the first information report it is stated that P.W.4 was assaulted by the aforesaid three persons with pharsa and lathi. Of course, in court P.W.4 has stated that Chandeshwar Rai assaulted him with back portion of pharsa. Reasons are not far off to see for this statement in the court. As the medical evidence has been quoted above, according to which, no incised injury was found either on the person of the informant or on the person of P.W.4. All the injuries, which were found on the persons on P.Ws.4 and 12 were caused by hard blunt substance. Therefore, the oral evidence does not fit in with the medical evidence on the point of assault. The doctor has said that injury Nos. 2 & 3 on the deceased were caused by one shot. But according to the first information report the deceased had received two gun shots. 8. Apart from this, occurrence is alleged to have taken place at 8 to 9 P.M. in the heart of Muzaffarpur town, and according to the prosecution case the informant along with the deceased, P.Ws. 1, 2, 5, 7, 10 and 11 had gone to Muzaffarpur town and they were taking betel shop on the National Highway Chawk. All these witnesses belong to village Patahi, which is at a distance of two miles from Muzaffarpur town, but still they came there at 8 P.M to take the betel. 9. 1, 2, 5, 7, 10 and 11 had gone to Muzaffarpur town and they were taking betel shop on the National Highway Chawk. All these witnesses belong to village Patahi, which is at a distance of two miles from Muzaffarpur town, but still they came there at 8 P.M to take the betel. 9. According to the Doctor (P.W.15) undigested food was found in the stomach of the deceased and according to him the deceased might have taken food one hour earlier. It was the month of May. It is strange that the deceased had taken him meal so earlier in that evening. 10. P.W.16 is the Deputy Superintendent of Police, who took the charge of investigation of this case on 30.5.1977. In paragraph 5 he says that on 25.5.1977 he had gone to Sadar Hospital Muzaffarpur in the morning. Along with him was Sri T.N. Singh Sub-Inspector of Police. He had found large number of persona in the hospital due to which the first information report could not be written Near-about 8 A.M. he bad gone to Sadar Hospital. The Superintendent of police had supervised this case and the Superintendent of Police had interrogated him in course of supervision. He denied to have stated before the Superintendent of Police that the fardbeyan could not be recorded till 2 P.M. on 25.5.1985. In the present case the Superintendent of Police has been examined as defence witness no. 1. He (D.W.1) has stated that he had examined the Deputy Superintendent of Police Sri H.K. Mishra and Shri Mishra has stated before him that fardbeyan should not be recorded till 2 P.M. P.W.13 is the investigating officer. He also admits that the Superintendent of Police had supervised the case in his presence on 26.6.1977 and the Superintendent of Police has also inspected the place of occurrence. He had also gone to the Hospital on 25.5.1977 along with the Deputy Superintendent of Police (P.W.16). P.W.13 denied to have stated before the Superintendent of Police that be started recording fard-beyan at 8 A.M. in the morning but could not be completed till 2 P.M. due to intervention of the public. He also denied to have stated before the Superintendent of Police that the diary was kept blank because the fardbeyan of another case had already been recorded. He also denied to have stated before the Superintendent of Police that the diary was kept blank because the fardbeyan of another case had already been recorded. D.W.1 has stated that Ramjiwan Singh, Sub-Inspector of Police had stated before him that he started recording fardbeyan at 8 A.M. but due to interference the same could not be finished till 2 P.M. and as other fardbeyan of another case had already been recorded, therefore, diary was kept blank in sequence. No material has been shown to us to disbelieve the Superintendent of Police. Rather the fardbeyan is signed by the informant which is dated 25.5.1977. The attesting witness of the fardbeyan has also signed and put the date as 25.5.1977. 11. It has been argued on behalf of the appellants that the first information report was received by the court of the Chief Judicial Magistrate on 27.5.1977. The place of occurrence and the police-station situate in the same town of Muzaffarpur where the Court of Chief Judicial Magistrate situates, of course, from the lower Court record it does not appear that it was received on 27.5.1977 because the paper is torn where the date is mentioned. 12. Whatever may be, the fact remains that according to the admission of the Deputy Superintendent of Police (P.W.16) and the Superintendent of Police (D.W.I) it is clear that the fard-beyan was recorded at the spot at 11.30 P.M, is falsified and cannot be accepted. 13. P.W.3 had also examined, appellant Ram Nath Prasad Gupta at Mohan Prasad on 24.5.1977 at 10 P.M. and had found the following injuries :– "(1) Incised wound 3"xl" x2" on his left region, one inch below the left public tubercle with profused bleeding. The blood coming in due to involvement of great saphenous vein plus it tributaries at the saphena feromal junction and the branehes of the feromal artery. The blood was coming even at the time of the examination.” According to him the injury was caused by sharp cutting weapon and was grievous in nature. The age was within one hour. P.W.13 has admitted that he had also received requisition from the Hospital on 25.5.1977 on which he went there and found appellant Ram Nath Prasad Gupta at Mohan Prasad lying injured there, He recorded his statement at 8.30 A.M. which is Ext. The age was within one hour. P.W.13 has admitted that he had also received requisition from the Hospital on 25.5.1977 on which he went there and found appellant Ram Nath Prasad Gupta at Mohan Prasad lying injured there, He recorded his statement at 8.30 A.M. which is Ext. At According to the prosecution itself, the occurrence took place at about 9 P.M. as is apparent from Ext. A first information report. According to P.W. 3 he bad examined appellant Ram Nath Pd Gupta at 10 P.M. On the same day and found the aforesaid grievous injury which wad aged within one hour from the time of his examination. This clearly indicates that the appellant Ramnath Prasad Gupta must have received the injury in that very occurrence, The injury was grievous one. Of course; the witnesses have denied that this appellant received injury in that occurrence, but in view of the evidence of P.W.3 it cannot be said that the appellant Ram Nath Pd. Gupta received injury in some other occurrence. 14. It is also surprising that almost all the eye witnesses belong to the some village Putahi and they had gone to take betel at Muzaffarpur in the night. 15. Taking into consideration of the aforesaid facts and circumstances appearing in the case, a reasonable doubt is created about the manner of occurrence as given by the prosecution. Accordingly, both the appeals are allowed, the order of conviction and sentences passed against the appellants are set aside, and they are discharged of their bail-bonds. Appeal allowed.