JUDGMENT : Surendra Narain Jha, J.- This appeal has been filed by five appellants against their conviction and sentences. Appellant no. 1, has been convicted under section 304 Part II of the Indian Penal Code for short 'the Penal Code') and has been sentenced to undergo rigorous imprisonment for eight years. He has further been convicted under section 148 of the Penal Code and has been sentenced to undergo rigorous imprisonment for two years. The sentences have been ORDER :ed to run concurrently. Appellants no. 2 to 5 have been convicted under section 304 Part II read with section 149 of the Penal Code and have been sentenced to undergo rigorous imprisonment for five years each. They have further been convicted under section 147 of the Penal Code and have been sentenced to undergo rigorous imprisonment for one year each. However, their sentences have been ORDER :ed to run concurrently. 2. The prosecution case, in short, is that some unknown persons had committed theft of jack fruits from the tree of Ram Badan Rai (appeallant no. 1) in the night of 6th May, 1969 and he had suspected Ram Pravesh Rai (deceased) to have plucked the Jack fruits. On 8.51969, at about 6 P.M. the deceased Ram Pravesh Rai was going from his village home to Dalmianagar where he was working in the factory. It is alleged that these appellants uttered that Ram Pravesh had plucked the jack fruits and, therefore, they would cut his head. Appellant no. 1 was armed with Farsa and rest of the appellants were armed with lathis; According to the prosecution case, Ram Badan (appellant no. 1) ORDER :ed assault and the deceased fled inside his house. It is said that these appellants chased him. Further case of the prosecution is that the moment Ram Pravesh reached his Angan, Ram Badan (appellants no.) gave a Farsa 'blow' on his head as result of which he fell down there. The appellants thereafter came out of the house and also assaulted Garhan (P.W.4) and Raghu Rai the informant (P. W. 3) with lathis. 3. All the three injured persons were removed to Nasriganj hospital, but as the condition of the deceased Ram Pravesh Rai was serious, he was later on removed to the Patna Medical College Hospital where he died on 10.5.1969. 4. 3. All the three injured persons were removed to Nasriganj hospital, but as the condition of the deceased Ram Pravesh Rai was serious, he was later on removed to the Patna Medical College Hospital where he died on 10.5.1969. 4. On the same day, i.e. on 8.5.69 at about 9 P., M., the first information was recorded on the statement of Raghu Rai (P.W. 3). The investigation of the case proceeded and on completion of the investigation, charge-sheet was submitted against these appellants and after cognizance being taken, the case was committed to the court of session on 23.12.74 directing these appellants to stand their trial. 5. According to the defence case, as it appears from the examination of the accused appellants under section 313 of the Code of Criminal Procedure, and as disclosed in Ext. A, two days prior to the date of occurrence, there had been a quarrel between Banwari (appellant no. 3) and Garhan Rai (P. W. 4) and on, account of• that quarrel, on the date of occurrence i.e. 8.5.1969 at 6 P. M. Ram Pravesh Rai (deceased) came out of his house with a bicycle in his hand and from near the plaintain (sic) tree, he began-to abuse these appellants and on protest, there was some altercation between them. At this, said Ram Pravesh (deceased) went back to his house giving them threat and kept his bicycle in his house and came there again armed with a lathi along with Raghu Rai (P.W. 3). Lachhuman (P.W. 1) and Bhola (not examined) and gave a lathi blow on the head of Chait Singh (D.W. 3) who fell down unconscious' and regained his consciousness after two or three days in the hospital. Their further defence is that in that quarrel, Ram Badan was also assaulted. The first information lodged by Ram Badan regarding this occurrence is Exhibit ‘A’ in this case. 6. The prosecution has examined, seven witnesses in ORDER :to prove the charges. Out of them, P.Ws. 1, 2, 4 along with P.W. 3, the informant are said to be eye-witnesses. P. W. 5 is the doctor, who examined P. Ws. 3 and 4 and P. W. 7 is the Investigating Officer of this case. On the other hand, the defence has also examined three witnesses. Out of them, P.Ws. 1, 2, 4 along with P.W. 3, the informant are said to be eye-witnesses. P. W. 5 is the doctor, who examined P. Ws. 3 and 4 and P. W. 7 is the Investigating Officer of this case. On the other hand, the defence has also examined three witnesses. Out of them D. W. 1 is the same doctor, who was examined as P. W. 5, because he also examined the injured appellant no. 1 and Chait Rai alias Singh (D.W. 3). D.W.2 has been examined to prove the alibi of appellant no. 3. 7. Appellant no. 1 was charged under section 302/148 of the Penal Code at the time of the trial. Be was further charged under section 325 of the Penal Code along with appellants nos. 2 to 5. Appellant nos. 2 to 5 were further charged under section 302/149 and section 147 of the Penal Code. 8. The learned Additional Sessions Judge, after considering the evidence, came to the conclusion that the case falls within part II of section 304 of the 'Penal Code'. According to him, there was no intention on the part of appellant no. 1 to kill Ram Pravesh (deceased). So far as the other appellants, namely, appellants 2 to 5 are concerned, according to the learned Additional Sessions Judge, they were members of the unlawful assembly and they were found guilty under section 304 Part II read with section 149 of the Penal Code. The learned Additional Sessions Judge also found appellant no.1 guilty under section 148 and rest of the appellants under section 147 of the Penal Code and they were convicted and sentenced accordingly, as stated above. Hence, this appeal. 9. It is relevant to mention here that the learned Additional Sessions Judge, while considering the charge under section 325 of the Penal Code gave benefit of doubt and the appellants were acquitted of the said charge. 10. Learned counsel, appearing on behalf of the appellants, has contended that the prosecution has not been able to prove the place and manner of occurrence, as alleged by it. He has further contended that not even a single independent witness has been examined; rather only interested witnesses have been examined to prove its case, as alleged by the prosecution. 10. Learned counsel, appearing on behalf of the appellants, has contended that the prosecution has not been able to prove the place and manner of occurrence, as alleged by it. He has further contended that not even a single independent witness has been examined; rather only interested witnesses have been examined to prove its case, as alleged by the prosecution. On the other hand, the prosecution has not given any explanation for non-examination of the persons named in the first information report as witnesses, who are said to have seen the occurrence. According to the learned counsel, the occurrence did not take place in the Angan as alleged in the first information report, But, it took place near the plaintain tree and there appellant no. 1 along with Chait Singh alias Rai (D.W. 3) received grievous injuries, for which a case was lodged at the Nasriganj police station ( vide Ext. A). It was further contended on behalf of the appellants that although such grievous injuries were caused to appellant no. 1 and D.W. 3. the prosecution has not explained these injuries nor is there any whisper about such injuries either in the first information report or in the deposition of the information in Court. Therefore, according to him, this failure on the part of the prosecution to explain the injuries on appellant no. 1 and D.W. 3 is fatal to its case end makes the prosecution case doubtful. Lastly, he contended that in this case, the prosecution has not proved the first information report in accordance with 'the, provisions of the Indian Evidence Act, which caused prejudice to the appellants. 11. In ORDER :to appreciate the contentions raised by the learned counsel, I have examined the records of the case and the depositions of the prosecution witnesses, as well as the depositions of the defence witnesses. P. W. 3 is the informant Raghu Rai. He has stated in his deposition that he saw appellant no. 1 armed with Farsa and rest of the appellants armed with lathis, near a well, which is at his Darwaja. According to his statement, he was assaulted by these appellants and he fell down. After sometime when he went to the courtyard inside his house, he saw Ram Pravesh (deceased) lying injured, and then he has narrated as to how he along with other persons had taken Ram Pravesh to Nasriganj hospital. According to his statement, he was assaulted by these appellants and he fell down. After sometime when he went to the courtyard inside his house, he saw Ram Pravesh (deceased) lying injured, and then he has narrated as to how he along with other persons had taken Ram Pravesh to Nasriganj hospital. In his cross-examination, he has specifically stated that he did not see any assault on Chait Rai (D. W. 3). He has also stated that he did not see his son Rampravesh Rai assaulting Chait Rai. He has also denied any knowledge about the case lodged by appellant no. 1. In the first information report, which was lodged by him, he has said that on hulla his neighbours Daroga Ahir, Fudena Singh and Munshi Ahir and others came to the spot and saw the occurrence. But, I find that in this case, these persons have not been examined. The prosecution has not given any explanation P.W. 2 is the wife of this informant (P.W. 3) and P.W. 4 is his another son. According to P.W. 2, also who is the wife of the informant (P.W. 3), Ram Pravesh was assaulted by appellant no. 1 in the courtyard (Angan) just near the front door and thereafter, the appellants went out of the house. This witness has also stated in paragraph 4 of her deposition that she did not see any injury on the person of Chait Singh (D W. 3) or Ram Badan Singh (appellant no. 1). P. W. 4 has stated that Ram Pravesh (deceased) was his brother and when be (P.W. 4) came back to his house from his sugarcane field, he saw these appellants coming out of his house. Therefore, according to these witnesses, Ram Pravesh (deceased) received injury in the courtyard inside the house. But according to the defence case, the entire occurrence took place near the plaintain tree. The whole question for determination in this case is as to whether the occurrence took place in the courtyard or near the plaintain tree, which is at a distance of about 25 yards from the well situate outside the house of the informant. The Investigating Officer (P. W. 7), in course of investigation, had visited the place of occurrence and he has also prepared a map (Ext.2). According to this witness, the occurrence took place in between the house of the informant and the well. The Investigating Officer (P. W. 7), in course of investigation, had visited the place of occurrence and he has also prepared a map (Ext.2). According to this witness, the occurrence took place in between the house of the informant and the well. If his statement is taken to be true, then the entire case of the prosecution that Ham Pravesh was assaulted inside the house becomes suspicious. According to the Investigating Officer, there is a well on the west of the village and the house of Garhan Rai (P. W. 4), the Sehan land is the place of occurrence. There is a Public Works Department's pucca road at a distance of 60 yards on the west of the well. He also found one jack fruit tree on the western edge of the road. According to this witness, he found some blood in the Sehan. 12. P.W. 5 is the doctor, who has also been examined as a defence witness (D. W. 1). P. W. 5 examined Garhan Rai (P. W. 4) on 8.5.69 at 9.30 P. M. and found some injuries on his person. According to him, all the injuries were simple in nature and were caused by hard blunt and rough substance. On 9.5.69, at 1.15 A.M. he also examined Raghu Rai (D.W. 3) and found certain injuries on his person. According to him, injury nos. (1) and (2) were grievous in nature and the rest were simple. Ram Pravesh Rai (deceased) was also referred to this witness by the police, who was given first aid and again removed to the Patna Medical College Hospital for proper treatment. This witness, as D.W. 1, has stated that on 8.5.69 at 9 P. M. he examined Ram Badan Rai (appellant no. 1) and, found four injuries on his person. According to him, all the injuries were simple in nature cause, by hard blunt weapon. On the same day, this doctor examined Chait Rai and found one injury on his person, which was simple in nature caused by a bard blunt sub1stance. From a perusal of the evidence of P.W. 5 who is also D.W. l, it is, no doubt, clear that injuries were caused to appellant' no. On the same day, this doctor examined Chait Rai and found one injury on his person, which was simple in nature caused by a bard blunt sub1stance. From a perusal of the evidence of P.W. 5 who is also D.W. l, it is, no doubt, clear that injuries were caused to appellant' no. 1 and Chait Rai (D.W. 3) I do not find any whisper about these injuries either in the first information report or in the deposition of the informant as well as in the deposition of Garhan Rai (P.W. 4), 13. It is, no doubt, true that non-explanation of the injuries on the person of the accused is not always fatal to the prosecution, but the fact of failure on the part of the prosecution to explain such injuries is to be taken into account to test the truth of the prosecution case and the veracity of the prosecution witnesses. In my view, the non-explanation makes the prosecution story doubtful resulting in appellants having benefit of reasonable doubt. It also leads to the inference that the prosecution has suppressed the genesis and the origin of occurrence and has not presented the true version and the witness who have denied to have seen the injuries on the person of appellant no. 1 and D.W. 3 are lying on the material point and their versions are not reliable, specially, in view of the evidence of D.W. 1, who is the doctor, who has stated that he found certain injuries on their persons. On the other hand, in the instant case, there is a defence version to some extent which explains injuries on appellant no. 1 and D.W. 3 Therefore, it casts a cloud on the prosecution case. 14. From the analysis of the evidence on the record, it appears to me that the prosecution case falls short of absolute proof necessary to establish the charges. So far, as the testimony of the interested witnesses is concerned, it is not the law that the testimony of the interested witnesses is entitled to no weight, but their evidence must be scrutinised carefully. In the instant case, certain persons had been named in the first information report, but they did not come forward to support the prosecution case. It also casts a doubt on the prosecution story. 15. In the instant case, certain persons had been named in the first information report, but they did not come forward to support the prosecution case. It also casts a doubt on the prosecution story. 15. So far as the last contention of learned counsel for the appellants regarding non-exhibiting the first information report is concerned, it has been held by the Supreme Court in Damodar Prasad Chandrika Prasad v. State of Maharashtra (A.I.R. 1972 S.C. 622) that when maker of the first information report was examined in court, but the first information report has not been tendered by the prosecution in accordance with the provisions of the Indian Evidence Act, the court is debarred from relying on it. I find that in this case, neither the maker of the first information report has proved the first information report nor the Investigating Officer did so. It is the elementary duty of the prosecution to put in the first information report in evidence, because it is the foundation on which the entire Investigating Machineries act. But, in this case, I find that the learned Additional Sessions Judge vide ORDER :dated 8.2.78 has deleted the very first information report. It is no doubt, true, that the first information report is not the substantive evidence, but it can be used for one of the limited purposes of corroborating or contradicting the maker thereof. In this case, when the first information report is suppressed, it does not only create an adverse inference against the prosecution case, but a case of prejudice to the accused is also made out. Considering all these facts and circumstances of this case, I find force in this contention of the learned counsel appearing on behalf of the appellants. 16. In the result, therefore, the appeal is allowed, convictions and sentences passed against these appellants by the impugned JUDGMENT : are hereby set aside. The appellants are accordingly acquitted and discharged from the liabilities of their bail-bonds.