Judgment S.B.Sinha, J. 1. The appellants who are six in numbers have preferred this appeal against the judgment of conviction and sentence, dated 9-9-1988 passed by Sri Krishna Nand Singh, Additional Judicial Commissioner, Ranchi in Sessions Trial No. 512/83, whereby and whereunder he convicted them for alleged commission of offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo Rigorous Imprisonment for life. 2. On 9-7-1983 at about 230 p.m. PW 13 Nizamuddin Mlrdaha gave a fardbayan before the Officer-in-charge of Lohardagga Police Station alleging therein that in the morning he had gone to village Kairo falling under Kulu Police Station for getting his clothes tailored and while he had been returning to his village at about 11am. near the Utka Kabristan he found Appellant No 1 Jamal Mirdaha, Appellant No. 3 Ajij Mirdaha, Appellant No. 2 Nasir Mirdaha, Appellant No 4 Kalam Mirdaha residents of village Banda P S. Mandar and Munafat Khan, Appellant No. 5 and Safique Khan Appellant No. 6 residents of village Kairo fleeing away armed with various weapons. He further stated that he found mud and blood on their clothes. When he proceeded ahead, one Tetra Mirdaha, PW 5 came running and informed him that his father had been killed by the appellants which he came to learn from Pirthvi Mirdaha who had seen the assault. Upon hearing the said news, he came running to his village where he found the dead body of his father which had several injury marks on the body and the throat had also been cut. He further found blood on all sides of the dead body as also on the dead body itself. At the place of occurrence, various persons had been standing including Pirthvi Mirdaha (not examined) Doman Mirdaha, PW 4, Shahjahan Khan PW 9 and Tafazool Mirdaha PW 7 of his village. He further came to learn from the aforementioned persons that they had seen the appellants fleeing away after killing his father Noor Mohammad. The motive assigned for the aforementioned crime was that the deceased had purchased 1 acre of land from Aghnu Mahto, but the appellants bad also been claiming ownership therein and told them not to sow paddy therein. 3. The prosecution in support of its case examined 15 witnesses. PW 1 is one Pandey Bholanath Ray, who was Mukhiya of the village. 3. The prosecution in support of its case examined 15 witnesses. PW 1 is one Pandey Bholanath Ray, who was Mukhiya of the village. He is a formal witness. PW 2 is Sutan Devi. She allegedly saw three persons fleeing away. PW 3 Inder Sao is a formal witness. He proved the inquest report. PW 4 Doman Mirdaha is an eye-witness. PW 5 Tetar Mirdaha is said to be a hearsay witness. PW 6 Rustam Mirdaha is also said to be a hearsay witness. PW 7 Tafazool Mirdaha is an eye-witness. PW 8 Aghnu Oraon was tendered, but in cross-examination, he did not support the prosecution case. PW 9 Shahjahan Khan is also an eye-witness. PW 10 Siddique Khan is said to be a hearsay witness. PW 11 Noor Hasan and PW 12 Zeenat Mirdaha were tendered. PW 13 Nizamuddin Mirdaha is the informant and seen all the appellants fleeing away. PW 14 Dr. Mrs. Shakuntala Lal, who held autopsy on the dead body of the aforementioned Noor Mohammad on 10-7-1983 at 10.30 a.m. 4. The post-mortem report proved by her has been marked as Ext. 2. PW 15 is Bishwanath Dubey, ASI, who proved the inquest report, seizure list and the first information report. 5. In this case, two witnesses were examined also on behalf of the defence. DW 1 is Asimuddin Mirdaha and DW 2 Mangara Mahli, who is said to be the Chowkidar of the village. These defence witnesses purported to have stated that at the relevant time some of the prosecution witnesses were with them and they heard about the occurrence later on. 6. The learned court below, on the basis of the evidences brought on record found the appellants guilty of the offence under Section 302/34 of the Indian Penal Code for causing death of Noor Mohammad, as indicated hereinbefore and sentenced them to undergo rigorous imprisonment for life. 7. Mr. P. S. Dayal, the learned counsel appearing on behalf of the appellants submitted that in the instant case, the prosecution cannot be said to have proved its case inasmuch as, its witnesses have made different statements before the court below with regard to the number of accused persons, their participation in the actual assault and manner of assault. 8. Mr. P. S. Dayal, the learned counsel appearing on behalf of the appellants submitted that in the instant case, the prosecution cannot be said to have proved its case inasmuch as, its witnesses have made different statements before the court below with regard to the number of accused persons, their participation in the actual assault and manner of assault. 8. The learned counsel further submitted that in the instant case, the learned court below has not assigned sufficient or cogent reasons for disbelieving the defence witnesses whose presence near the place of occurrence had also been accepted by some of the prosecution witnesses. 9. The learned counsel further submitted that in this case, two first information reports were lodged in two different police station as DW 2, Chowkidar was also sent for lodging the first information report as has been admitted by PW 1 and thus it must be held that some information had reached the police before lodging the first information report by 13 Nizamuddin Mirdaha. 10. The learned counsel further submitted that in this case, there are three eye-witnesses namely PW 4, 7 and 9 who having been contradicted themselves in material particulars, their testimonies cannot be believed at all. 11. It was further submitted that in this case, the Investigating Officer has not been examined. The learned counsel further submitted that from a perusal of the first information report, it would appear that Pirthvi Mirdaha was the most important witness as according to PW 13 it was he atone who saw the appellants murdering his father as will be evident from the first information report itself. 12. The learned counsel further submitted that there being a conflict between occular and medical evidence, the prosecution case should not be believed. 13. Mr. Sumir Prasad, the learned Additional Public Prosecutor, on the other hand submitted that the evidences of the prosecution witnesses should be read as a whole. According to the learned counsel, the prosecution had been able to prove that the deceased was murdered by the appellants and they had the requisite common intention to do so. 14. The learned counsel further submitted that PW 9 has given a vivid description of the accused and as such there is no reason as to why his evidence shall not be relied upon. 15. 14. The learned counsel further submitted that PW 9 has given a vivid description of the accused and as such there is no reason as to why his evidence shall not be relied upon. 15. The learned counsel further submitted that from a persual of the medical evidence, it would appear that there are several injuries on or near the neck and also in the middle of the right leg, which proved the occular evidence. The learned counsel further submitted that from a persual of the evidence of PW 4, it would appear that he saw the occurrence from a distance of about 100 yards. According to the learned counsel, this witness has seen a part of the occurrence as he heard hallah and then saw the occurrence from a distance. 16. The learned counsel further submitted that the prosecution case has also been proved by PW 5, who also stated that he found cycle etc. belonging to the deceased lying near the ground. 17. The learned counsel appearing on behalf of the appellants, in view of the clear evidences on record did not dispute that Noor Mohammad Mirdaha was murdered. He before us merely submitted that in the facts and circumstances of this case, the prosecution cannot be said to have proved its case as against the appellants beyond any reasonable doubt. 18. PW 14 Dr. Mrs. Shakuntala Lal who conducted the autopsy on the dead body of Noor Mohammad found the following injuries on the person of deceased : "(1) On incised wound on the lower part of the forehead 4" x 1" left eye deep. Those were fractures on the left side of favial bone. (2) One incised wound 1" X 1/2" X brain deep on the upper part of the forehead on dissection fracture of bone of upper part of forehead detected. (3) Incised wound in front of neck 5" X 4" X 3". It was found that the forehead vein had been cut. (4) One incised wound on the right wrist joint 3" X 1" X 1". (5) One incised wound on the right elbow joint 2" X 1" bone deep. (6) One incised wound on the middle of chest 2" X 1" deep upto stirva. (7) One incised wound on the lower part of sternum 1" X 1/2" X deep upto sternum. (4) One incised wound on the right wrist joint 3" X 1" X 1". (5) One incised wound on the right elbow joint 2" X 1" bone deep. (6) One incised wound on the middle of chest 2" X 1" deep upto stirva. (7) One incised wound on the lower part of sternum 1" X 1/2" X deep upto sternum. (8) One incised wound on the middle of right leg 2" X 1" X 2". (9) One incised wound on the back of chest 5" X 1" X 1". (10) One incised wound on the root of nose 2 X 2" X bone deep. (11) Pealiags of skin on the back of the chest and also on the bottomkend thigh. (12) On internal examination the fracture of upper part of the sternum was found. 19. In the opinion of doctor, all the said injuries were caused by sharp cutting weapon which may be Farsa or sword. She further opined that Injury Nos. 1, 2 and 3 were sufficient to cause death of the deceased in ordinary course of nature and the time elapsed since death was 24 hours. This witness further stated that the Injury Nos. 1, 2 and 3 could be caused singly or jointly. From the perusal of Injury No. 3 aforementioned, it would appear that the front of neck was cut by 5" X 4" X 3" and it was found by the doctor that the trachial vein had also been cut, 20. PW 4, Doman Mirdaha, stated that on the date of occurrence he had gone to village Guddi for getting the wheat crushed where the deceased Noor Mohammad had also gone for the self-same purpose. After getting his wheat crushed, Noor Mohammad proceeded with the rice, wheat and rice dust on his bicycle followed by this witness. After some time, he heard hullah on the way ; he rushed there and saw the appellants assaulting the deceased Noor Mohammad. 21. According to this witness, Appellant No. 1, Jamal Mirdaha caught hold of the hands and legs of the deceased whereas Appellant No. 3, Ajij Mirdaha caught hold of his head and Appellant No. 5 Munafat Khan had been slaying his throat with a sword and the other accused persons having been armed with Lathis, Bhujali had been standing there. 22. According to this witness, Appellant No. 1, Jamal Mirdaha caught hold of the hands and legs of the deceased whereas Appellant No. 3, Ajij Mirdaha caught hold of his head and Appellant No. 5 Munafat Khan had been slaying his throat with a sword and the other accused persons having been armed with Lathis, Bhujali had been standing there. 22. This witness stated that when the appellants filed away, he went to the place of occurrence and saw blood oozing out from the body of the deceased and by that time he had already dead According to this witness, later on some other villagers came whose name he did not know. 23. Mr. Dayal submitted that the evidence of this witness should not be believed, inasmuch as, if at that point of time only one appellant had been slaying the throat of the deceased, he could not have received so many injuries on the other part of this body. 24. The learned counsel further submitted that although, according to this witness, the deceased had been coming back with Aatta, Rice and Bhusa In a bicycle, no reference of these articles had been given in the first information report. 25. The learned counsel further submitted that although, this witness claimed himself to be the first man to arrive at the place of occurrence and others followed him, the evidence of other alleged eye-witnesses are different. 26. The learned counsel further submitted that the evidence of this witness should also not be believed as he purported to have seen the occurrence from a distance of about 100 yards. The learned counsel further submitted that he purported to have change the place of occurrence also as he stated that the occurrence took place on the road. 27. It was further submitted that it is unlikely that this witness did not see anybody else witnessing the occurrence. 28. PW 9 is the other witness of the occurrence. According to this witness, he had been coming to Lohardagga at about 10 P.M. He reached Guddi and found the appellant assaulting the deceased. This witness further stated that Jamal Mirdaha (appellant No. 1) had caught hold of legs of the deceased whereas appellant No. 3, Ajij Mirdaha held his head and Munafat had been slaying the neck of the deceased. This witness further stated that Jamal Mirdaha (appellant No. 1) had caught hold of legs of the deceased whereas appellant No. 3, Ajij Mirdaha held his head and Munafat had been slaying the neck of the deceased. This witness further stated that the Appellant No. 2 Nasir and Appellant No. 4 Kalam Mirdaha were armed with Bhujali and Appellant No. 5 Munafat and Appellant No. 3 Ajij were armed with sword whereas Appellant No. 1 had Ballam in hand. 29. This witness admitted that out of fear he fled away from the place of occurrence and informed Tetar Mirdaha P.W. 5 upon coming to the village. 30. Mr. Dayal submitted that this witness should not be believed, in view of the fact that he is himself a criminal. In this connection, our attention was drawn to the fact that he was involved in two cases of theft and once he was arrested at Asansol. The learned counsel submitted that evidence of this witness should not also be believed as he stated that he had fled away alongwith accused persons. 31. It was further submitted by the learned counsel that this witness allegedly saw the occurrence when Noor Mohammad had already fallen down and as such he cannot be said to be an eye-witness of entire occurrence. This witness, according to the learned counsel, had also testified about presence of Chowkidar at the place of occurrence after the incident was over. 32. It was further submitted by the learned counsel that it is suprising that this witness upon his return to the place of occurrence with the villagers did not talk with any other persons. The learned counsel further submitted that all the witnesses are related with each other. According to the learned counsel, these witnesses must have talked about the occurrence amongst themselves. It was further submitted by the learned counsel that whereas PW 2 merely saw three persons without identifying anybody, according to PW 9 four persons had been participating in the occurrence. 33. The learned counsel further drew out attention to the fact that PW 6 deposed that appellant, Ajij had come with a sword as was told to him by his grand son namely PW 10 stated in his cross-examination that he disclosed to his grand father about some persons fleeing towards village Guddi. 34. At this juncture, the evidence of PW 10 may be noticed. 34. At this juncture, the evidence of PW 10 may be noticed. PW 10 stated that while he had been grazing the cows near the Kabrastan at village Banda at about 9 a.m, he found the appellants going towards vlliage Guddi with weapons in their hand and later on he came to learn that they had committed the murder of Noor Mohammad. In his cross-examination, he stated that he was not in a position to say as to what weapon was in hand of which accused persons. 35. PW 7, Tafjul Mirdaha and PW 13, the informant on the other hand had seen the appellants fleeing away from the place of occurrence. PW 7 stated that while he was working on his Mahua field, he saw the appellants fleeing away with the weapons in their hand. He, of course could not say as to what weapon was being carried by whom. He stated that he later on heard about the death of the deceased Noor Mohammad and came to Beltand and saw the dead body with his neck cut. 36. According to this witness, he saw the appellants fleeing away at a distance of about 150 yards and they had been going towards village Kairo. 37. PW 13, as noticed hereinbefore, is the informant. He stated that while he had been returning from village Kairo after getting the clothes stiched, he found the appellants fleeing away near the Kabrastan and their clothes were stained with blood and mud. This witness further stated that appellants were variously armed. He further stated that when he covered some distance, he found Tetra Mirdaha who informed that his father had been killed by the appellants, wherafter he went to the place of occurrence and found the dead body of his father. 38. As noticed hereinbefore, this witness in the first information report stated that PW 9 and PW 7 had seen the occurrence.Thereafter, he went to Lobardagga Police Station to lodge the information This witness denied that he had any talks with Prithvi He further could not say as to what weapon was in whose hands. 39. The prosecution case was also said to be proved by PWs 5 and 6. PW 5 stated that at about 11 a.m. he was ia his village and he was informed by PW 9 about the murder of Noor Mohammad by the appellants at Beltand. 39. The prosecution case was also said to be proved by PWs 5 and 6. PW 5 stated that at about 11 a.m. he was ia his village and he was informed by PW 9 about the murder of Noor Mohammad by the appellants at Beltand. This witness further stated that PW 9 also told him later on to inform the son of the deceased and while they were going to inform the informant, he met him on the way and narrated about the incidence, and thereafter, went to the place of occurrence This witness further stated that at the place of occurrence, the cycle of Noor Mohammad and his cap had been lying on the ground and the wheat, rice etc., were scattered at the place of occurrence 40. As the learned court below has not placed much reliance upon the evidence of PW 6, it is not necessary to discuss his evidence in detail. 41. PW 2 stated that on the date of occurrence, while she had been going to Nikoni in the field, she heard hallah near Devi Mandap and found three persons near Beltand She stated that out of fear she fled away and could not identify anybody. She came to learn later on that a person of village Banda had been killed. The evidence of this witness, therefore, does not lend any support to the prosecution case. 42. From the conspectus of the evidence brought on record, it is clear that both the alleged eye-witness namely, PW 4 and PW 9 are chance witnesses. It is surprising that although none of them witnessesed the entire occurrence, inasmuch as, both of them had seen that part of occurrence when appellant No. 5 had allegedly been slitting the throat of the deceased while others had been catching hold of his legs and head. 43. It also appears surprising that in the first information report, the name of these two witnesses have not been referred as the eye-witnesses although they are related to the informant. It does not appear to be the normal conduct on the part of PW 9 to have kept his mouth shut when he came back along with other villagers. 44. Moreover, a serious lacuna in the prosecution appears to be in sending of the first information report to court after much delay. It does not appear to be the normal conduct on the part of PW 9 to have kept his mouth shut when he came back along with other villagers. 44. Moreover, a serious lacuna in the prosecution appears to be in sending of the first information report to court after much delay. As noticed hereinbefore, the occurrence took place on 9-7-1983 and at 12.30 p. m. the Fardbayan of the informant was recorded. The formal first information report was also recorded immediately thereafter on the same day. But the first information report was sent to the Magistrate on 14-7-1983 as appears from an endorsement on it. 45. As noticed hereinbefore, it has come on records that PW 1 when came to know of the incident, he had already sent DW 2 Mangra Mahto to the police station. In this connection, it may be noted that DW 2 in his deposition categorically stated that he had given information to the police station. However, none of those informations had been brought on record. 46. From the order-sheet of the court of SDJM, it appears that the first information report reached in the court on 14-7-1983. In Column 7 of the formal first information report, no explanation has been given for delayed despatch of the first information report to the court. 47. In Ishwar Singh V/s. The State of Uttar Pradesh, AIR 1967 SC Page 2423, the Supreme Court has held that if the first information report is sent to the court after a long period, a suspicion may arise that the same was manufactured. Similar are the decisions reported in Marudanal Augusti V/s. State of Kerala, 1980 (4) SCC page 425 and in Ajodhya Singh and others V/s. State of Bihar, 1990 (Vol I) PLJR 378. 48. It is true as suggested by Shri P. C. Roy that 11th and 12th July, were holidays, but it is well known that the first Information reports can always be sent to the court of Chief Judicial Magistrate or the Magistrate in charge even oh holidays. The decision of the Gujarat High Court in Balu Ramu Mocchi V/s. State of Gujarat, reported in 1986 Cr LJ page 983, upon which reliance has been placed on by Sri Roy has also no application in the facts of the present case. The decision of the Gujarat High Court in Balu Ramu Mocchi V/s. State of Gujarat, reported in 1986 Cr LJ page 983, upon which reliance has been placed on by Sri Roy has also no application in the facts of the present case. In that case, it was held that the prosecution witnesses were reliable and the statements of all the material witnesses were recorded on the night of the incident itself, the delay in sending the first information report did not adversely affect the prosecution case. Such is not the position here. 49. In this case, the Investigating Officer has not been examined. Had the Investigating Officer been examined, he could have explained his conduct with regard to delay in despatch of the first information report to the court. In this case, even the medical evidence suggests that some injuries were possible by dragging by the appellants. The question as to whether there had been mark of dragging at the place of occurrence or not could have been explained by the Investigating Officer alone. 50. The Investigating Officer appears to have seized the blood stained earth. However, PW 9 in para 3 of his evidence stated that earth was wet as there had been rains earlier. 51. In such a situation, in our opinion, non-examination of the Investigating Officer has caused prejudice to the appellants. If tbe Investigating Officer bad been examined, it was possible for the appellants to enquire from him as to what happened to other informations sent to the police station, and if the Investivating Officer had been examined, he could have also explained the discrepancy in the evidence of witnesses in relation to the exact place of occurrence. 52. The presence of Chowkidar along with villagers immediately after the occurrence have also been accepted. PW 9 saw only three persons participating in the occurrence. PW 2 had merely seen there persons fleeing away, although, she could not identify anybody. 53. The most important witness of this case, who is said to have first witnessed the occurrence, namely Prithvi Mirdaha has not been examined. In fact, according to the DWs Prithvi Mirdaha along with other persons had been in the mosque with DW 1 when they heard about the murder. 54. 53. The most important witness of this case, who is said to have first witnessed the occurrence, namely Prithvi Mirdaha has not been examined. In fact, according to the DWs Prithvi Mirdaha along with other persons had been in the mosque with DW 1 when they heard about the murder. 54. There appears to some discrepancy with regard to carrying of weapon, inasmuch as, whereas PW 9 stated that Nazir and Kalam were armed with Bhujali, Munafat with Talwar and Jamal with Bhujali, but the same has not been supported by PW 4. 55. In this connection, it may further be mentioned that according to PW 6 his grand son Siddiqui told him that he had seen Ajij with a Bhujali going to kill Noor Mohammad. On the fact of it this appears improbable inasmuch as, it is not possible to know the intention of a person. PW 6 has further stated that he had informed the Bhandara police station at about 12 hours, which is about four miles away from the place of occurrence. The said first information report has also not been brought on records. Further, admittedly PW 6 is admitted ememically deposed of to the appellant, Ajij. 56. Taking thus all facts and circumstances into consideration, we are of the opinion that the appellants are entitled to benefit of doubt. 57. In the result, this appeal is allowed. The judgment of conviction and sentence passed by the learned court below is set aside. 58. Appellant No. 2, Nasir Mirdaha, appellant No. 4, Kalam Mirdaha and Appellant No. 6, Saifique Khan are on bail, they are discharged from their bail bonds. Appellant No. 1, Jamal Mirdaha, Appellant No. 3, Ajij Mirdaha, and Appellant No. 5, Munafat Khan are in custody and thus they are directed to be set at liberty forthwith unless wanted in connection with any other case. D.Sinha, J. 59 I agree.