V. D. GYANI, J. ( 1 ) THE appellant has been convicted under section 304, Part II, IPC and sentenced to undergo rigorous imprisonment for five years by First Additional Sessions Judge, Ujjain, vide judgment dated 3. 8. 1982, passed in Sessions Trial No. 74 of 1982. ( 2 ) THE appellant was tried along with his brother Prahlad and father Ichcharam (Since acquitted) on charge under section 302, alternatively section 302/34, IPC. ( 3 ) PROSECUTION case was Ichcharam had received a letter from Savda in Maharashtra where deceased Kishores sister was married and it was rumoured about her, on the basis of the letter received, that she was given to easy virtues. A day before the incident i. e. on 15. 12. 1981, the deceased alongwith Onkar (P. W. 4) had been to Ichcharam to enquire about the letter received by him, Ichcharam, however, did not part with the letter and quarrelled with the two, who informed their uncle Heeraman (P. W. 1) about it, who lodged a report, Ex. P-i, at Mahankal Police Station, Ujjain. Next day. it is alleged that Ichcharam called Onkar and Pritam to his house, through the appellant, but they were not available when Vijay reached their house. They, however, came to the accused around 5. 30 or 6. 00 p. m. and asked chcharam as why they had been called by him Ichcharam questioned them as to why they quarrelled yesterday. The other two accused also came and start beating Onkar and Pritam with lath is. Kishore on coming to know that Pritam and Onkar had gone to set out in their search and reached Ichchalam's house there he found them quarrelling, tried to pacify them. In the meanwhile, it is alleged the appellant dealt a lathi blow on his head, resulting in fracture of parietal bone. While the quarrel was still on, police appeared on the scene handed all under section 151, Cr. P. C. Kishore who was injured lying unconscious, on regaining consciousness, rushed home and from there to Mahankal Police Station where be lodged report, Ex. P-3. ( 4 ) KISHORE was sent for medical examination and treatment. He ultimately succumbed to the injury on 2 1. 4. 1981. P. C. Kishore who was injured lying unconscious, on regaining consciousness, rushed home and from there to Mahankal Police Station where be lodged report, Ex. P-3. ( 4 ) KISHORE was sent for medical examination and treatment. He ultimately succumbed to the injury on 2 1. 4. 1981. On completion of investigation, the accused were charge sheeted and tried for the offence under sections 302, 302/34, IPC, while two have been acquitted by the trial Court, the appellant has been convicted under section 304 Part II, IPC and sentenced to undergo rigorous imprisonment for five years. Hence, this appeal. ( 5 ) SHRI Bhatnagar, learned counsel appearing for the appellant, submitted that the trial Court has mis-appreciated the evidence on record, ignored its inherent infirmities, the belated examination of so called eye-witnesses, non-compliance of section 157, Cr. P. C. , the tainted nature of investigation are factors vitiating appellant's conviction. Shri Swami, learned Panel Lawyer has, on the other hand, supported appellants conviction which according to him based on reliable evidence. ( 6 ) SHRI Bhatnagar was extermely critical about the manner of investigation in this case, belated examination of witnesses during investigation and pointed out inherent infirmities in the prosecution case rendering it wholly unreliable. ( 7 ) IT has come in the evidence of Hiraman (P. W. 1) that all the accused, along with the prosecution witnesses, Onkar (P. W. 4), Pritam (P. W. 2) and Hiraman himself, were hauled up from the spot, where they were quarrelling. The police had reached there. All of them were taken to the police station and detained at the police station for 3 or 4 days. According to him, Kishore, the deceased, had accompanied his mother latter to the police station. He has also deposed that from the place of occurrence he went home on his bicycle and from there to the police station again on the bicycle. All these three witnesses, Hiramao, Onkar and Pritam have admitted that Kishore appeared on the scene of Occurrence at a latter stage while the scuffle was still going on. According to Pritam (P. W. 2), Kishore came to the spot while they (Pritam and Onkar) were being assaulted by sticks. Onkar (P. W. 4) had also made a similar statement. All these three witnesses, Hiramao, Onkar and Pritam have admitted that Kishore appeared on the scene of Occurrence at a latter stage while the scuffle was still going on. According to Pritam (P. W. 2), Kishore came to the spot while they (Pritam and Onkar) were being assaulted by sticks. Onkar (P. W. 4) had also made a similar statement. According to both these witnesses, Hiraman came to the spot on their shouting for help and Kishore came to the spot after about 5 to 7 minutes of Hiraman's arrival. These witnesses have admitted that about 10 to 15 persons had gathered on the spot. One Salim, who runs his Flour-mill in the vicinity has been examined as P. W. 3. According to him the above named three witnesses along with one (referring to the deceased) had come to Ichcharam's place, who was abusing them. He docs not support the statements made by the other witnesses to the effect that Kishore came at a latter stage. From the evidence of these four witnesses it is clear that the police had reached the spot and all of them were hauled up and taken into custody by police Mahankal. ( 8 ) AS stated by Hiraman (P. W. 1), it is extremely unnatural for any policeman to have left the injured on the spot. Although two police sub-Inspectors and one constable have been examined as witnesses in the case, none of them has assigned any reason or said a word as to why Kishore could not be hauled up on the spot and why was he allowed to go home on a bicycle and how he could manage to leave the spot on his bicycle when other six persons were taken into custody. The prosecution has not chosen to produce any material as regards arrest of the accused and the three witnesses, Hiraman, Pritam and Onkar and their detention for 3-4 days at the police station. It appears that they were hauled up under section 151, Cr. P. C. A. S. I. Govindsingh Parihar (P W. 10) has admitted in his evidence that Hiraman (P. W. 1), Pritam (P. W. 2) and Onkar (P. W. 4) were arrested under section 151, Cr. P. C. and sent to jail, but he could not say as to how long they remained in jail. P. C. A. S. I. Govindsingh Parihar (P W. 10) has admitted in his evidence that Hiraman (P. W. 1), Pritam (P. W. 2) and Onkar (P. W. 4) were arrested under section 151, Cr. P. C. and sent to jail, but he could not say as to how long they remained in jail. He has further admitted in para 18 of his statement that he did not approach any of the residents of the locality residing just in the vicinity of the place of occurrence. They included a lawyer, a doctor and a police sub-Inspector, along with others. ( 9 ) THE only independent witness in this case is Salim (P. W. 3) whose statement is shown to have been recorded by the Investigating Officer on 23. 12. 1981, almost on the 7th day after registration of the crime. The reason assigned for this belated recording of Salims statement by the Investigating Officer is that it was only on recording the statement of Pritam (P. W. 2) that he came to know about Salim being an eye-witness. This explanation offered by him carried no conviction. Exhibit P/2 is the spot map, prepared on 17. 12. 81 and Salim (P. W. 3) is one of the Panch Witnesses to this spot map. The incident had occurred hardly at a distance of 2 or 4 paces from his flourmill. The Investigating Officer (P. W. 1) did not choose to examine him even when he was available on 17th itself, at the time of preparation of the spot map, Ex. P/2. If he was really an eye-witness to the occurrence, it was the bounden duty of the Investigating Officer to have recorded his statement on the 17th itself. Having failed to do so and subsequently recording his statement a week after the incident, projecting him as an eye-witness, fails to inspite any confidence. Non-disclosure of assailants name by such a witness for such a long time and the flimsy reason assigned by the Investigating Officer in recording his statement on 23rd, exposes him to the criticism levelled by the learned counsel for the appellant that there was a calculated attempt at padding by the police. ( 10 ) SHRI Swami, learned Panel Lawyer for the State, submitted that the witness had turned hostile. ( 10 ) SHRI Swami, learned Panel Lawyer for the State, submitted that the witness had turned hostile. What is being considered at the moment is not the evidentiary value of Salims evidence, but the unfair manner of investigation. When Salim was available at the spot at the time of preparation of the spot-map, still however the investigating Officer not choosing to examine him, merely reveals the faulty manner in which the investigation was conducted. ( 11 ) SHRI Bhatnagar pointed out that apart from unfairness of the investigation, the prosecution was unfair even during trial in not producing other eye-witnesses like Ashok Rokde and Madanlal Sharma. It was just near the house of Ashok Rokde that the incident took place. Madanlal Sharma, according to the prosecution, was present on the spot, but the trial Court appears to be of the view that non-production of these witnesses would not effect the evidentiary value of the other three witnesses, Hiraman, Pritam and Onkar. They are close relations. When independent witnesses were available, yet not produced, it goes to affect the prosecution case. ( 12 ) SHRI Bhatnagar, learned counsel for the appellants invited attention to trial Court's order-sheet dated 5. 7. 82 and 6. 7. 82 and pointed out that enlisted independent witnesses were given up by the prosecution without assigning any reason and in contrast Onkar, though not listed as a witness, was offered for being examined as a witness. No doubt, the trial Court has allowed his examination as a witness and he has been examined as P. W. 4. Shri Bhatnagar does not at this State challenge the legality or property of permitting examination of an unlisted witness like Onkar, which dropping the listed eye-witnesses like Ashok Rokde, and Madanlal Sharma, points to the unfairness on the part of the prosecution. The argument advanced is not without substance and cannot be lightly brushed aside. ( 13 ) IT was argued by Shri Bhatnagar that if Pritam could be examined on 17th by the Investigating Officer, there was no reason why Onkar could not have been examined on the same day. His statement during investigation (Ex. D/4) was recorded on 20. 12. 1981. It was suggested by the learned counsel that as a matter of fact the police was got napping and got into action only on death of Kishore and thereafter stated padding and patching the prosecution story. His statement during investigation (Ex. D/4) was recorded on 20. 12. 1981. It was suggested by the learned counsel that as a matter of fact the police was got napping and got into action only on death of Kishore and thereafter stated padding and patching the prosecution story. He doubted the genuineness of the report, Ex. P/3, alleged lodged by Kishore and recorded by Kalyansingh, head- constable posted at Mahankal Police Station. It was on the basis of this report that Kishore was sent to the district hospital vide requisition, Ex. P14, Exhibit P/6 is the injury report. It is dated 16. 12. 1981 and time at 9. 30 p. m. This injury report shown that Kishore was admitted in B-Ward of the hospital and a dying-declaration was suggested to be recorded. Except for an x-ray, Ex. P110, no record of medical treatment has been produced by the prosecution, although Kishore died on the morning of 2 1st. ( 14 ) LEARNED counsel for the appellant urged that inspite of there being an intimation, Ex P/5, from the hospital requiring the police to make arrangements for recording of dying declaration, none of the two sub-Inspectors examined as P. W. 9 and P. W. 10, have said a word about the follow up action taken by them. Small Chit, Ex. P/7, issued by Dr. Pendharkar (P. W. 6), time at 12. 30 a. m. , states that the patient was not in a fit condition to make any statement. Shri Bhatnagar asked, to whom was this chit issued and who had gone to record the statement? It is not clear from the evidence of Dr. Pendharkar (P. W. 6 ). Assuming that at that time the injured was not in a fit condition to make any statement, what attempts were made to record his dying declaration till 21st, when he died. The Investigating Officer had admitted that he had not recorded till then the statement of any of the witnesses except that of Pritam. It was necessary for the Investigating Officer to have explained as to what prevented from recording of a dying-declaration, particularly when the treatment chart and bed head ticket has been withheld by the prosecution. It would have certainly helped in determining the condition of the patient during the five days when he was in the hospital. In what circumstances the chit, Ex. It would have certainly helped in determining the condition of the patient during the five days when he was in the hospital. In what circumstances the chit, Ex. P17, came in possession of the Investigating Officer, is also not clear. Exhibit P/7 is not addressed to the Station Officer and the Investigating Officer does not say a word as to how he came by it. ( 15 ) THE eyewitness account in this case consisted of Hiraman (P. W. 1), Pritam (P. W. 2) and Onkar (P. W. 4 ). All these witnesses are in relation. Hiraman (P. W. 1) is tile uncle of other two witnesses. It is not a case where independent witnesses were not available. Prosecution has not chosen to examine them. The eye-witnesses examined by the prosecution had a deep-rooted grudge and animus against the accused and were interested in implicating them. Their evidence is found to be unreliable by the trial Court as against three accused. In these circumstances, apart from the partisan nature of investigation, there are other inherent infirmities in the evidence of these witnesses, whose examination, during investigation, was quite late. No explanation has been given for such belated examination. ( 16 ) THE first witness Hiraman (P. W. 1) did not speak of a stick blow being given by the appellant Vijay on the head of deceased Kishore. According to him, Kishore had left by the time when police arrived on the scene. Onkar (P. W. 4) contradicted Hiramans statement that Kishore was at the scene when the police came. He is the real brother of the deceased. It has come in his evidence that by the time Kishore came, about 10 to 15 persons had gathered on the spot, but none has been examined. He has further deposed that Kishore made good his escape, no sooner the Police came. According to Pritam (P. W. 2), who was the first to be examined as a witness by the police during investigation, did not state to the Investigating Officer that Kishore was hit with a stick by Vijay. This fact is missing from his case-diary statement, Ex. D/2, and the commission cannot be ignored or brushed aside as insignificant because it is a most important part of the whole evidence. It is clear from the evidence of this witness that he had made improvement on material points. This fact is missing from his case-diary statement, Ex. D/2, and the commission cannot be ignored or brushed aside as insignificant because it is a most important part of the whole evidence. It is clear from the evidence of this witness that he had made improvement on material points. The prosecution has suppressed the genesis of the quarrel by not placing the whole record. ( 17 ) THE case is based on a report, said to have been lodged by the deceased Kishore on 16th evening. It was recorded, according to Kalyansingh (P. W. 5), in an Adam-Chek Report, Ex. P/3, in a register, pages of which were not serially numbered, as admitted by Kalyansingh (P. W. 5 ). It was recorded in Adam Chek Registert. All other witnesses, Hiraman, Pritam and Onkar, who were at the police station, have stated that Kishore had come with his mother to the police station, but she has not been examined. Kalyansingh deposed that Kishore had come all alone, but he cannot be believed on this point. This report, Ex. P/3, is shown to have been recorded at 8. 30 p. m. Kalyansingh stated that soon after recording of the report, he rushed to the hospital. The injury report Ex. P/6, shows that he was drowsy. His pulse rate was 140, B. P. 110/60. He had vomitting in last one hour and the seriousness of his condition can be guessed by the fact that he was immediately admitted in B-Ward and the dying declaration was required to be arranged. In this condition it is hard to believe that he could have lodged a report, like Ex. P/3, which is a detailed coherent statement running into a full-scap sheet. The fact that the pages of the register are not serially numbered, further adds to the suspicion about the veracity of this report. Although the Investigating Officer has stated that on receiving the X-ray report, he registered a crime, vide Ex. P/17, but there is absolutely nothing in the whole evidence of either the Investigating Officer or the doctor concerned to show as to when the X-ray report had in fact been received by the Investigating Officer. Although the Investigating Officer has stated that on receiving the X-ray report, he registered a crime, vide Ex. P/17, but there is absolutely nothing in the whole evidence of either the Investigating Officer or the doctor concerned to show as to when the X-ray report had in fact been received by the Investigating Officer. ( 18 ) SUSPICIOUS nature at the very inception of the offence, belated examination of eyewitnesses, though in police custody, the improvement in their evidence, as discussed above and non- examination of independent eye-witnesses, coupled with the tainted nature of investigation, make the prosecution case unreliable. ( 19 ) IN the circumstances, it cannot be said that the prosecution brought home the charge to the accused. His conviction rests on a quick sand. It is liable to be set aside and is accordingly set aside. The accused-appellant is acquitted of the charge framed against him. This appeal stands allowed. The appellant is discharged of his bail-bonds. Appeal allowed. .