A. N. DIKSHITA, J. ( 1 ) THIS appeal has been filed by Chandra Kumar alias Lalua and Ram Kumar against the judgment and order dated 9. 4. 1979 of Sri N. R Asthana. 4th Additional Sessions Judge, Bulandshahr, in Sessions Trial No. 458 of 1977 convicting Chandra Kumar under sections 307 and 323/34 I. P. C. and sentencing him to five years R. I. and to one years R. I. respectively, and convicting Ram Kumar under section 307/34 and section 323/34 I. P. C. and sentencing him to five years R. I. and to one years R. I. respectively. ( 2 ) THE prosecution case is that one Chhoraman, P. W. 2, had appeared as a witness against Jodhi and Babu in a murder case on account of which they were bearing grudge against him. Jodhi is the Pradhan of village Salabad, P. S. Shikarpur, district Bulandshahr while Eabu is a member Of the Land Management Committee of the Gram Samaj. The appellants are in cordial terms with Jodhi and Babu and are members of the same party. On 21. 11. 1975 at about 4. 00 p. m. Chhoraman, P. W. 2 was ploughing his field end Nanua son of Babu and Ram Singh son of Liladhar were working with him. Babu and Jodhi armed with lathis, Ram Kumar armed with a pharsa and Chandra Kumar having a country made pistol arrived on the scene. All of them chastising Chhoraman told him that he would be taught a less in for appearing as a witness against them. Chhoraman was also abused. Jodhi and Babu thereupon struck Chhoraman with lathis and Ram Kumar gave a Pharsa blow, which however, did not hit him and struck a bull belonging to Chhoraman. A hue and cry was raised and Chhoraman ran helter and shelter to save his life but was fired upon by Chandra Kumar with the country made pistol hitting him. After receiving the shot Chhoraman fell down. A number of persons including Nanua, P. W. 3, Ram Singh, Karam Chand, P. W. 4, rushed to rescue Chhoraman. All the accused then ran away. Chhoraman was thereafter taken to Primary Health Centre, Danpur where his injuries were examined by Dr. Iqbal Ali, P. W. 1, the same day at 9. 00 p. m. The following injuries were found on the person of Chhoraman: 1. A bruise 9 cm x 2 cm. All the accused then ran away. Chhoraman was thereafter taken to Primary Health Centre, Danpur where his injuries were examined by Dr. Iqbal Ali, P. W. 1, the same day at 9. 00 p. m. The following injuries were found on the person of Chhoraman: 1. A bruise 9 cm x 2 cm. 9n the right side of back. 2. A contusion 6 cm x 2 cm on the left side of chest. 3. An abrasion 3 cm x 3 cm on right shoulder. 4. A burise 6 cm x 2. 5 cm on the right upper arm. 5. bruise 4 cm x 2 cm on the right forearm. 6. An abrasion 4 cm x 2 cm on the inner aspect of right thigh. 7. A bruise 7 cm x 2 cm on the back of left thigh. 8. A gunshot wound of the right calf region, there were. six abrasions within the circumstance of 9 cm x 2 cm There was no tattooing. As one of the injuries found on the person of Chhoraman was of fire arm he was advised X-ray examination. On 22. 11. 1975 Dr. Shyam Krishna Gupta, P. W. 6, radiological examined Chhoraman. ( 3 ) ON 23. 11. 1975 a written report was lodged at P. S. Shukarpur at 8. 15 a. m. The delay in lodging the first information report has been explained by Chhoraman by stating that as he was ill so the report was delayed and more so when the police station was at a distance of about 13 miles from the place of concurrence. A chik report was prepared and a case under section 307 I. P. C. was registered against Chandra Kumar alias Lalua, Raj Kumar, Jodhi and Babu. ( 4 ) S. I. R. S. Dixit, P. W. 5, was entrusted with the investigation and he reached the scene of occurrence on 26. 11. 1975 and recorded the statements of Chhoraman, P. W. 2. Nanua. P. W. 3, Karam Chand. P. W. 4 and Ram Singh. A site plan was prepared. After completing the investigation a charge sheet was submitted against Chandra Kumar and Ram Kumar, appellants. ( 5 ) IT is significant to mention here that no charge sheet was submitted against Jodhi and Babu. It is also noteworthy that both the appellants are real brothers. P. W. 4 and Ram Singh. A site plan was prepared. After completing the investigation a charge sheet was submitted against Chandra Kumar and Ram Kumar, appellants. ( 5 ) IT is significant to mention here that no charge sheet was submitted against Jodhi and Babu. It is also noteworthy that both the appellants are real brothers. ( 6 ) IN support of the prosecution case six witnesses were examined. Chhoraman, P. W; 2, corroborated the prosecution story. In his statement he has given out that Babu and Jodhi started inflicting lathi injuries on his person while Ram Kumar gave a Pharsa blow, which did not hit him but instead injured the bull. He ran from the spot after raising crises but Chandra Kumar fired a shot, which hit him and he fell. On hearing his cries Karam Chand, Surajpal, Kalyan and other villagers reached the scene of occurrence and on seeing them all the assailants ran away. He got himself medically examined on that very day. He was radiologically examined on 22. 11. 1975 by Dr. Shyam Krishna Gupta, P. W. 6. He had become very ill and that is why he lodged a written report at P. S. Shikarpur on 23. 11. 1975. In his cross-examination Chhoraman P. W. 2, admitted that he did not know that Shri Krishna, father of the appellants, ever gave evidence against the father of the witness. He also admitted that he had lodged a report against Jodhi and Babu when Smt. Shanti, wife of Sher Singh, was murdered. Kalyan is admittedly his uncle. Ram Singh and Nanua likewise are admittedly his servants and are family brothers. This witness has nowhere stated in his statement as to where the gun shot injury was inflicted on his person while in the first information report he stated that the gun shot injury was received by him in his right leg making him fall on the ground. In his statement he further stated that on seeing Ram Kumar hitting him with a Pharsa, which escaped he ran after raising an alarm but this fact is nowhere found in the first information report. ( 7 ) ANOTHER aspect can also not be lost sight of that this witness instead of lodging a report at the police station went for medical examination. ( 7 ) ANOTHER aspect can also not be lost sight of that this witness instead of lodging a report at the police station went for medical examination. Even when he was advised radio logical examination he preferred to have it none by a private Doctor at Debai. It is not emerging as to what is the distance of Danpur and Debai from place of occurrence i. e. village Salabad. However, this witness further stated that he did not prepare the written report but did not sent it for lodging through Karam Chand and other associates who had gone with him to Primary Health Centre, Danpur, and Radiological Expert at Debai as he apprehended that these persons may throw the report and he had no faith on them. Such an illusion lurking in the mind of this witness is in comprehensible. After all Kalyan was his uncle and Karam Chand was the person who had taken him to Danpur and to Debai and there would be no reason for either Karam Chand. Kalyan or any of the associates to have withheld the report from being lodged at the police station. The testimony of this witness does not inspire such confidence as may bring home the guilt to the appellants. ( 8 ) DR. Iqbal Ali, P. W. 1, had examined Chhoraman, P. W. 2 on 2 1. 11. 1975 at 9. 00 a. m. Dr. Iqbal Ali stated that injuries nos. 1 to 7 were simple and might have been caused by some blunt weapon. As regards injury no. 8 he stated that it was inflicted from behind. The statement of Chhoraman. P. W. 2, is thus at variance with the statement of Dr. Iqbal Ali. P. W. 1, who stated that the injury was caused from behind. In the first information report it is nowhere emerging that the injury was caused to Chhoraman from behind. ( 9 ) NANUA, P. W. 3, who is allesed to be present on the spot has not supported the prosecution story nor so Karam Chand, P. W. 4. Both have denied that any injury was caused to the person of Chhoraman, P. W. 2. ( 10 ) A startling feature of this case is that injuries nos. 1 to 7 had been caused by a blunt weapon and allegedly by Jodhi and Babu. Both have denied that any injury was caused to the person of Chhoraman, P. W. 2. ( 10 ) A startling feature of this case is that injuries nos. 1 to 7 had been caused by a blunt weapon and allegedly by Jodhi and Babu. The S. I. R. S. Dixit, P. W. 5, after recording the statement of the witnesses and clearly finding their involvement in the assault preferred not to submit a charge sheet against. Jodhi and Babu. There is nothing in the statements of the witnesses under section 161 Cr. P. C. which may have absolved Jodhi and Babu from the assault. This Sub-Inspector instead of investigating the case had himself performed the role of the judge. No satisfactory explanation is for the coming except that he had discussion with the Senior Superintendent of police and the Station Officer and on their advice Jodhi and Babu were not challaned. This clearly shows the manifest ingenuity in implicating even the Senior Officers. The only prudent and reasonable case would have been to submit a charge sheet against the alleged four assailants, in any case the complainant had implicated Jodhi and Babu. The explanation submitted by the investigating officer R S. Dixit, P. W. 5, was wholly unconvincing and it was not open to him to exclude Jodhi and Babu when evidence was enough on record against them also. It is apparent that both the appellants being members of the rival party have been implicated and have been challaned. The role of the investigating officer R. S. Dixit P. W. 5, is wholly dubious and speaks of his connivance with Jodhi and Babu. Non implication of Jodhi and Babu has created a dent in the prosecution evidence. Further Ram Kumar appellant who had a Pharsa attacked Chhoraman, P. W. 2, but he escaped unhurt but the bull was injured. Even the bull was not examined. That shows the callous manner in which the investigation was conducted by R. S. Dixit P. W; 5. ( 11 ) THE appellants who had pleaded not guilty examined Smt. Ram Rupi, D. W. 1, who has stated that Chhoraman, P. W. 2, is her nephew. As the father of the appellants Shri Krishna was helping her ill her distress, Chhoraman and his father were unhappy with it. ( 11 ) THE appellants who had pleaded not guilty examined Smt. Ram Rupi, D. W. 1, who has stated that Chhoraman, P. W. 2, is her nephew. As the father of the appellants Shri Krishna was helping her ill her distress, Chhoraman and his father were unhappy with it. This witness has tried to explain that Chhoraman was injured while he was on his way to Debai by some dacoits who bad robbed him. Howsoever, the improbable the defence version may be the duty of the prosecution to establish the guilt beyond doubt against the accused cannot be dispensed with. ( 12 ) NO doubt Chhoraman, P. W. 2, is an injured witness and his testimony cannot be lightly brushed aside and has to be normally accepted but in the instant case his statement as has been discussed above does not inspire confidence. The delay in lodging the first information report has not been adequately explained and the manner in which the injury has been caused also remains mysterious. It would be a sad day to believe such a witness who has tried to implicate the two brothers. It is again complexing to find as to when Jodhi and Babu have not been challenged why the two appellants have beef) convicted under section 323/34 I P. C. The prosecution in the instant case has miserably failed to establish the guilt against the appellants. The appeal thus deserves to be allowed. ( 13 ) IN the result the appeal is allowed and the Conviction and sentences of the appellants are set aside and they are acquitted. They are on bail and they need not surrender and their bail bonds are discharged. ( 14 ) BEFORE parting with the case it has to be noted with constraint that the conduct of R. S. Dixit, P. W. 5, the investigating officer was highly dubious and in any case not above board. It was on account of his faulty and interested investigation that this appeal has to be allowed. Appeal allowed. .