JUDGMENT A.N. DIKSHITA, J. 1. TIRRU, Ramji and Dilip Singh have preferred this appeal against the judgment and order dated 31-3-1979 passed by Sri A. S. Tripathi, II Additional District and Sessions Judge, Varanasi in Sessions Trial No. 92 of 1976. The appellants have been convicted under sections 307/149, 324/149 and 148 IPC and have been sentenced to seven years' RI, one year's RI and one year's RI respectively. All the appellants have also been convicted under section 5 of the Explosive Act and each has been sentenced to two years' RI. Appellants TIRRU and Ramji have further been convicted under section 332 IPC and each has been sentenced to one year's RI. The sentences have been ordered to run concurrently. 2. THE prosecution story as revealing from the first information report is as follows : One Chotey Lal, a notorious Goonda of the town, had demanded Rs. 5000/- from Sitaram PW 1. Baiju, PW 2, is the brother-in-law of Sitaram, PW 1. THE appellants are alleged to be of the gang of the aforesaid Chotey Lal. Chotey Lal was arrested at the behest of Baiju, PW 2. THE amount of ransom demanded by Chotey Lal was not paid. THE arrest of Chotey Lal and the non-payment of the ransom amount caused enmity with the gangmen of Chotey Lal. Chotey Lal was later on killed in the encounter with the police. On 24-10-1974 at about 8.00 p. m. Sitaram, PW 1, Baiju, PW 2, and a number of other persons were sitting in the Baithak of Sitaram's house in mohalla Chaurchharwa, PS Chetganj, Varanasi. Six or seven persons came there and threw hand grenades in the room where they were sitting from the door sad window. Hearing the sound of the explosion of hand grenades the constable Kamla Yadav, PW 5, and Sumaru Yadav, PW 7, who were on patrol duty reached the spot. Bombs were thrown towards them also and they were injured. THE incident was seen by Kanhaiya, Muiii, Bhikhy, Durga Prasad and others. It is alleged that there was sufficient light tin the room, the lane and the road. THE miscreants were seen in the said electric light and were accordingly named in the first information report. THE persons who could not be identified were not named in the report. THE incident was seen by Kanhaiya, Muiii, Bhikhy, Durga Prasad and others. It is alleged that there was sufficient light tin the room, the lane and the road. THE miscreants were seen in the said electric light and were accordingly named in the first information report. THE persons who could not be identified were not named in the report. Consequently to the throwing of the hand grenades Baiju, Mukund Lal, Hanuman Prasad, Bhairo Prasad, Beni Madho, Km. Anita, Mewa Lal, Vishwanath, Dakhi and constables Kamla Yadav and Sumaro Yadav were injured. All the injured except the two constables were rushed to the hospital. THE two injured constables went to the police station. A written report of the incident was lodged at P. S. Chetganj at 8.50 p. m. the same day by Sita Ram PW 1 and a case under sections 147, 148, 324, 307 IPC and section 5 of the Explosive Act was registered against the accused. 3. THE injured persons were medically examined at the hospital by Dr. S. K. Srivastava, PW 4, and Dr. B. B. Rai, PW 9. They found the injuries as follows:- 4. AFTER the investigation was completed a charge-sheet was submitted against the accused. The accused pleaded not guilty and were tried. 5. IN support of its case the prosecution examined Sitaram, PW 1, Baiju, PW 2, Kamla Yadav, PW 5, Kanhaiya, PW 6, Sumaru, PW 7, and Vishwanath, PW 8. Dr. S. K. Srivastava PW 4 and Dr. B. B. Rai, PW 9 proved the injury reports while Kripa Shanker, PW 10, investigated the case. 6. BEFORE proceeding to scan the testimony of eye-witnesses it would not be out of place to mention here that Baiju, PW 2, Kanhaiya, PW 6 and Vishwanath, PW 8, did not support the prosecution story. The prosecution story has to be tested now on the basis of allegations as set forth in the first information report and the statements of the witnesses in court. 7. THE main reason for throwing; hand grenades in the Baithak of Sitaram, PW 1, was that he did not pay the ransom amount of Rs. 5000/- which was demanded by Chotey Lal Goonda. His brother-in-law Baiju, PW 2, got Chotey Lal arrested. Chotey Lal was ultimately encountered to death by the police. 7. THE main reason for throwing; hand grenades in the Baithak of Sitaram, PW 1, was that he did not pay the ransom amount of Rs. 5000/- which was demanded by Chotey Lal Goonda. His brother-in-law Baiju, PW 2, got Chotey Lal arrested. Chotey Lal was ultimately encountered to death by the police. It is stated that the appellants are the gangmen of Chotey Lal and thus borne enmity with Sitaram, PW 1. In very clear terms Sitaram has stated in the first information report that Chotey Lal Goonda was demanding Rs. 5000/- from him, but he did not pay the same. His brother-in-law Baiju, PW 2, got Chotey Lal arrested which caused annoyance to Chotey Lal and his partymen. In his statement before the court Sitaram stalled that Chotey Lal had demanded Rs. 5000/- from Baiju and had threatened Baiju with dire consequences if the amount was not paid. Chotey Lal and his partymen were annoyed on account of nonpayment of the ransom amount. Baiju ultimately got Chotey Lal arrested. This story of Sitaram as setforth in the first [Information report has been negatived by him in his statement before the court, it is further falsified by the statement of Baiju, PW 2, who has stated that the amount of Rs. 5000/- was not demanded from him but from his son Durga Prasad. It is thus clear that the story of the demand of Rs. 5000/- which is said to be the cause of enmity is incredible and unworthy of reliance. 8. SITARAM, PW 1, has admitted that he did not receive any injury on account of the bomb explosion. In the first information report it was stated by him that he was sitting in his Baithak along with Baiju and other persons. He has further mentioned in the report that he saw the appellants hurling the bombs inside the room and on account of; sufficient light being there in the lane and on the road he recognised the appellants. In his statement before the court he has admitted that at the time when the bombs were hurled he was in the room on the first floor and immediately on hearing the noise of the explosion he came down and saw the appellants. The two statements are contradictory in intent and unworthy of reliance. In his statement before the court he has admitted that at the time when the bombs were hurled he was in the room on the first floor and immediately on hearing the noise of the explosion he came down and saw the appellants. The two statements are contradictory in intent and unworthy of reliance. Moreso when it has been admitted by him that immediately on the explosion of the bombs a dark and thick layer of smoke had enveloped the entire room and the adjoining accommodation. Baiju, PW 2, had gone even to the extent of stating that even hand was not visible on account of thickness of the smoke. If that be so, it is very doubtful that Sitaram, PW 1. could see either from the room where he was sitting on the first floor or while he was coming from the first floor of the house. Another salient feature is that the time consumed in hurling the bombs is said to be 2-3 minutes and Sitaram, PW 1, admits that he took 2-3 minutes in coming down from the first floor. It is very difficult to believe that Sitaram, PW 1 had seen the appellants hurling the bombs and then running away. Implicit reliance, therefore, cannot be placed upon the testimony of Sitaram. What factors forced him or prompted him to implicate the appellants though not radiantly emerging from the statements of the witnesses clearly smack of his interestedness in implicating the appellants in the case. 9. BAIJU, PW 2, who later on became the architect of the prosecution story in view of the fact that it was stated that the demand of Rs. 5000/- was made from him by Chotey Lal, has himself denied it and has in fact contradicted the assertions of Sitaram, PW 1. No doubt he had earlier stated that the demand of Rs. 5000/- was made from him by Chotey Lal but later on he admitted that the demand was not made from him but was made from his son Durga Prasad. BAIJU, PW 2, has adequately discredited the statement of Sitaram, PW 1, which he setforth in the first information report that Chotey Lal had demanded Rs. 5000/- from him. BAIJU, PW 2, very straight-forwardly admitted that he did not see any person peeping from the windows into the room or any body throwing the bombs. BAIJU, PW 2, has adequately discredited the statement of Sitaram, PW 1, which he setforth in the first information report that Chotey Lal had demanded Rs. 5000/- from him. BAIJU, PW 2, very straight-forwardly admitted that he did not see any person peeping from the windows into the room or any body throwing the bombs. He has also stated that immediately after the explosion of the bombs the entire room as well as the lane was enveloped with smoke and there was complete darkness. 10. KANHAIYA Lal, PW 6, has been named in the first information report as having reached the scene of occurrence. This witness is admittedly the brother-in-law of Sitaram, PW 1. His house is situate near the house of Sitaram at a few paces but the house of Sitaram is not visible from his house. Initially he supported the prosecution story that the appellants threw the bombs but later on he took a somersault and stated that on hearing the noise of bombs he did not leave his house and did not go to the scene of occurrence. He also admitted that he saw the two constables standing but nowhere stated that these constables were also injured on account of hurling of bombs. Ultimately he resiled from his earlier statement and admitted that he did not see any of the appellants hurling the bombs. He has stated that much after the incident he had gone to the place of occurrence where people were naming the appellants. His statement is unworthy of any credence. It also speaks that Sitaram, PW 1 had lodged the report incorrectly as this witness (KANHAIYA Lal, PW 6) had never reached the place of occurrence. It appears that at a later stage knowing the interest of his brother-in-law Sitaram, PvV 1 Kanhaiysi Lal, PW 6, associated himself with the prosecution story. To rely on the statement of such a witness would be discarding the essential elements of truth. It is manifest that his deposition is wholly unworthy of reliance. Vishwanath Prasad, PW 8, who has been mentioned in the first information report being sitting in the Baithak has stated that around 8.00 or 8.15 p. m. he had gone to the Baithak of Baiju for rendition of accounts. In the Baithak he found two police constables and Baiju, Hanuman Prasad and Bhairo. Vishwanath Prasad, PW 8, who has been mentioned in the first information report being sitting in the Baithak has stated that around 8.00 or 8.15 p. m. he had gone to the Baithak of Baiju for rendition of accounts. In the Baithak he found two police constables and Baiju, Hanuman Prasad and Bhairo. Immediately after five minutes some-one threw a bomb which he thought was a cracker. Though this witness received some injuries and admits that he was examined by the doctor in the hospital, he states in a very straight-forward manner that he could not see as to who had hurled the bomb. He has gone to the extent of even deposing that the appellants were not present at that time. On being declared hostile he was cross examined by the State Counsel. He has stated that his statement was recorded by the Sub Inspector in the hospital but he states that he had not mentioned in his statement any name of the miscreants. He also states that be had mentioned to the Sub Inspector that two constables were sitting in the Baithak but why the Sub Inspector has not mentioned this fact in his statement under section 161 Cr PC is not known to him. It is thus crystal clear that Vishwanath, PW 8, has not supported the prosecution case, rather has made a dent on the truthfulness of the prosecution version. 11. FROM the above it is clear that Baiju, PW 2, Kanhaiya Lal, PW 6, and Vishwanath, PW 8, have not supported the prosecution case and in fact they have damaged the monumental prosecution version. They have completely demolished the truthful veracity of the prosecution story. 12. NOW remain the testimony of two constables Kamla Yadav, PW 5, and Sumaru Yadav, PW 7. Kamla Yadav has stated that on the date of the incident he was posted on patrol duty from 6.00 p. m. to 12 p.m. He also states that Sumaro Yadav, PW 7, was also posted on patrol duty in the adjoining area. While on duty he reached the house of Sitaram, PW 1, and in the way he met Sumaru Yadav who also accompanied him. He further magnifies the prosecution story of the demand of Rs.5000/- by Chotey Lal Goonda from Baiju, PW 2. While on duty he reached the house of Sitaram, PW 1, and in the way he met Sumaru Yadav who also accompanied him. He further magnifies the prosecution story of the demand of Rs.5000/- by Chotey Lal Goonda from Baiju, PW 2. He also states that Chotey Lal was arrested on account of a tip being given by Baiju, PW 2, thus inviting the hostility of his partymen. On the date of the incident around 8.00 or 8.15 p. m. on hearing the sound of bomb explosion he rushed towards the house of Sitaram. He clearly states that he saw Ramji, Tirru, Kailash, Diiip and two others whose names he did not know throwing and hurling bombs on the house of Sitaram. He further states that when he and Sumaru, PW 7, reached the spot Ramji and Tirru, appellants, hurled bombs on them also. He also states that Dilip and Kailash accused were keeping the bombs in a bag. On the explosion of the bomb he and Sumaru were injured. Many persons of the locality had assembled and he saw the appellants running away from the scene of occurrence. He was medically examined by the doctor at Kabirchaum Hospital and the other persons who were sitting in the Baithak of Sitaram were also examined at the same hospital. He has further stated that when be first Heard the sound of the explosion of bombs he was at a distance of 20 paces, but with the same breath he states that at the time of hearing the noise he was in the lane. He also states that he received the injuries in the open land lying in front of the house of Sitaram. He has also stated that there was a very thin layer of smoke at the spot. His this statement stands contradicted by the testimony of Baiju, PW 2. It is incomprehensible that only a thin lair of smoke would raised after 5 or 6 bombs were hurled. Another fact which creates a doubt is that Vishwanath, PW 8, who was sitting in the room where the bombs fell had stated that two constables were also sitting in the Baithak. He had also stated this fact to the investigating officer. There appears to be a probable link in this truthful deposition of Vishwanath, PW 8, and at the same time discredits the veracity of the statement of this witness. He had also stated this fact to the investigating officer. There appears to be a probable link in this truthful deposition of Vishwanath, PW 8, and at the same time discredits the veracity of the statement of this witness. No doubt Kamla Yadav, PW 5, is an injured witness and in normal circumstances his statement could not be lightly brushed aside, but his statement leaves such a big impact of suspicion that it is difficult to have implicit reliance on it. The injuries sustained by him are simple and the opinion of the doctor is that they could be caused by a blunt object though they have been mentioned as firearm injuries also. After receiving such injuries he walked to the road, hired a rickshaw and went to P. S. Chetganj. In reaching Chetganj police station 10-15 minutes were consumed. He had gone to the police station along with Sumaru, PW 7. It is intriguing that being a member of the police force he did not take any other injured to the police station nor arranged to send them to the hospital. Immediately on reaching the police station he and Sumaru narrated the incident to the Head Moharrir. Why the information given by Kamla Yadav, PW 5, and Sumaru Yadav, PW 7, was not written down at the police station is also intriguing. In fact this was the first information of the incident given by these two constables and it must have been recorded. Law nowhere prescribes a written report. The information given by these two constables ought to have been treated as the first information report and the police of Chetganj must have proceeded accordingly. After informing the police at P. S. Chetganj, Kamla Yadav, PW 5, and Sumaru Yadav, PW 7, went to the hospital along with a few constables and a Sub Inspector. Even the Sub Inspector who was present at the police station and who accompanied the injured constables to the hospital did not take adequate steps to record the first information report. This smacks of some intriguing feature. The conduct of Kamla Yadav, PW 5, is such which instead of inviting confidence deserves to be castigated. Even the Sub Inspector who was present at the police station and who accompanied the injured constables to the hospital did not take adequate steps to record the first information report. This smacks of some intriguing feature. The conduct of Kamla Yadav, PW 5, is such which instead of inviting confidence deserves to be castigated. That being a person of the police force he would leave the injured at the spot, would not take them to the police station, would not see that a report is lodged, would go to the hospital with a Sub Inspector and some police constables are matters which suggest a lot about his conduct which deserves to be spurned. Another interesting fact which is forthcoming from the statement of this witness is that he went to the hospital from the police station without a Majroobi Chhithi. A crime was committed and the persons of the public and of the police force were injured and still this witness Kamla Yadav, PW 5, has failed to discharge his duty as a member of the force. Now there remains the testimony of Sumaru Yadav, PW 7. He has also more or less narrated the incident in the same tune as has been given by Kamla Yadav, PW 5. For the same reasons on which the testimony of Kamla Yadav has been discarded I have no hesitation to discard the statement of Sumaru Yadav, PW 7. This witness has no cloubt stated that he did not remember whether a Majroobi Chhithi was written or not. Admittedly the appellants were known to Kamla Yadav, PW 5, and Sumaru Yadav, PW 7, as has been stated by them that they were bad characters and were often brought to the police station. It is apparent that these two constable witnesses colluded with Sitaram PW 1, who is the architect of the prosecution story, and falsely implicated the appellants. The ingenuity of the prosecution version is further revealed when it is found that the incident is alleged to have taken place around 8.15 p. m. and some time must have been taken after receiving the injuries and arranging conveyance and reaching the hospital but Km. Anita was examined at 8.25 p. m. by Dr. B. B. Rai, PW 9, Mukand Lal was examined at 8.35 p. m. and Hanuman Prasad was examined at 8.40 p. m. by the same doctor. Anita was examined at 8.25 p. m. by Dr. B. B. Rai, PW 9, Mukand Lal was examined at 8.35 p. m. and Hanuman Prasad was examined at 8.40 p. m. by the same doctor. The first information report itself was lodged by Sitaram, PW 1, at 8.50 p. m. Sumaru Yadav, PW 7, was examined by the doctor at 9.00 p. m. while Kamla Yadav, PW 5, was examined at 9.45 p. m. Why these two constables having reached the police station within IS minutes did not find Sitaram there is anyone's guess moreso when the report was lodged at 8.50 p. m. The prosecution story being unconvincing carries the Court to the era of Aesops Fables belief. 13. ANOTHER startling and revealing aspect of the case is that a live bomb was recovered from the scene of occurrence and was taken possession of by the police. This bomb or the splinters which could be traced from the spot were never sent to the Ballistic Expert for opinion. This has further undermined the truthfulness of the prosecution version. The prosecution story is unconvincing and reliance cannot be placed upon the: statements of the witnesses as discussed above. The appellants, therefore, are entitled to be acquitted. 14. IN the result the appeal is allowed and the conviction and sentences of the appellants are set aside. They are on bail and they need not surrender. Their bail bonds are discharged. Appeal allowed.