Judgment SATYABRATA SINHA and R.N.SAHAY JJ. 1. The appellants who are ten in number have been convicted by Sri Baleshwar Prasad Singh, 1st Additional Sessions Judge, Giridih, in terms of his judgment, dated 17th February, 1988 passed in Sessions Trial Nos. 40/87 and 14/87. for commission of an offence under Sections 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. 2. The prosecution case, bereft of all unnecessary details is that Chetlal Rai gave a fardbayan at about 12 noon on 20th July, 1986 at villlage Shankarpur before the Officer-in-charge of Ahilyapur police station in thle district of Giridih alleging inter alia therein that about 7.30 in the morning he had been ploughing his land at Chappargarha Bahiar alongwith the deceased Loknath Rai who was his nephew. The deceased Loknath Rai was going towards jungle and as soon reached near the southern edge of the land, appelant Dilo Rai and Murat Rai caught hold of him and thereafter appellants Tilak Rai, Kokil Rai, Huro Rai, Phogal Rai, Karu Rai, Degan Rai, Khadhar Rai and Bimal Rai came there and started beating him with lathi, sabel and phorsa; as a result whereof he fell down there. Allegedly, the deceased received injuries on his head chest, back and on his both legs. The accused persons allegedly dragged the deceased to the land and when the informant intended to run for the purpose of saving him, he was also assaulted by appellant No. 4 (Karu Rai) appellant No. 7 (Tilak Rai) and appellant No. 1 (Dilo Rai) with lathi and also by appelant No. 8 (Kokil Rai) with a sabel. The deceased allegedly died there. 3. The motive behind the alleged occurrence is said to be a land dispute between the deceased and the accused persons. It was further alleged that appellant No. 7 (Tilak Rai) looted away articles from the house of the deceased Loknath Rai in respect whereof a case had been going on in the Court. 4. In support of its case, the prosecution has examined 8 witnesses. P.W. 1 Sumitra Devi is the wife of the deceased She claimed herself to be an eye-witness. P.W. 2 Binod Rai is a minor son of the deceased who was tendered. P.W. 3 is Jai Narain Singh. P.W. 4 Chotlal Rai is the informant. P.W. 5 Satish Chandra Pathak is the Investigating Officer. P.W. 6 Dr. P.W. 1 Sumitra Devi is the wife of the deceased She claimed herself to be an eye-witness. P.W. 2 Binod Rai is a minor son of the deceased who was tendered. P.W. 3 is Jai Narain Singh. P.W. 4 Chotlal Rai is the informant. P.W. 5 Satish Chandra Pathak is the Investigating Officer. P.W. 6 Dr. S. K. Singh examined the informant on 21-74986 at about 2.50 P.M. P.W. 7 Dr. Nageshwar Prasad conducted autopsy on the dead-body of the deceased Loknath Rai. P.W. 8 is a formal witness. 5. Before the learned Court below, although P.W. 1 claimed herself to be an eye-witness of the occurrence, her testimony as an eye-witness was not believed by the learned Court below on the ground that according to P.W. 4 himself after the deceased fell down dead, P.W. 2 came to the spot and thereafter he went to inform his mother, namely, P.W. 1 who came at the spot later on. 6. It further appears that P.W. 1 has not been named in the first information report as an eye witness. Even P.W. 1 in her cross-examination admitted that she was informed about the occurrence by P.W. 2 and thereafter she went to the place of occurrence. P.W. 4 in his examination- in-chief supported the case of the prosecution in its entirety. This witness further testified that firstly Dilo and Murat caught hold of the deceased and thereafter other appellants came there armed with lathi, pharsa and sabal and started assaulting the deceased ; as a result Whereof he fell down. He further testified that when he tried to save the deceased he was also assaulted by appellant Huro, Murat and Karo by lathi and paina. 7. P.W. 7 conducted autopsy on the dead-body of deceased Loknath Rai. He found seven ante-mortem injuries oh the dead-body which are as follows : "One incised wound on the forehead measuring 2.5" x 1/2" X skin deep. One lacerated wound on the back of the head measuring 3" x 1/4" X skin deep. Fracture of the radius and ulna of both the forearms. Compound fracture of the tibia of the right leg. Two penetrating wounds with incised edge of both the legs of different sizes." According to the doctor, the injuries were ante-mortem in nature and caused by sharp cutting penetrating and hard and blunt substance. Fracture of the radius and ulna of both the forearms. Compound fracture of the tibia of the right leg. Two penetrating wounds with incised edge of both the legs of different sizes." According to the doctor, the injuries were ante-mortem in nature and caused by sharp cutting penetrating and hard and blunt substance. The death was caused due to shock and haemorrhage due to the aforementioned injuries. Time elapsed since death was about 36 hours. He proved the injury report in the Court which was marked as Ext. 6. 8 The learned Court below further came to the conclusion that the prosecution has brought on record a Sanha which was marked as Ext. 7 which was filed in the Court of Sub-divisional Officer wherein the deceased had allegedly expressed his apprehension that his life was in danger at the hands of five of the appellants, namely, Tilak, Kokil, Karo, Huro, Dilo. However, from Ext. 7 it appears that the said application was filed on 5-4-1986. 9. It may be mentioned here that Tilak, Karo, Dilo and Kokil were also charged under Sections 323 of the Indian Penal Code for assaulting the informant P. W. 4. The learned Court below, however, acquitted the appellants of the aforementioned charge inter alia on the ground that the informant sustained injuries due to a fall. 10. Mr. A. N. Deo, learned counsel appearing for the appellants submitted that from a perusal of the injury report which has been proved by P.W. 6 it would appear that according to the doctor, the injuries received by the informant was within 28 hours. Learned counsel further submitted that as the deceased received injuries at about 7.30 A.M. on 20th July, 1986, and as he was examined by the doctor at 2.15 P.M. on 31-7-1986, the injuries having been received more than 30 hours before his examination by P.W. 6 and the very fact that the doctor opined that the injuries were received within 26 hours, goes to show that P.W. 4 was not present at the time of occurrence and he received the purported injuries somewhere else. 11. 11. Learned counsel further submitted that, in fact, P.W. 7 who conducted the autopsy on tre dead-body of the deceased, Loknath Rai at 3.30 P.M. on 21-7-1986, opined that the time of death elapsed since the holding of the post-mortem examination was within 36 hours goes to show that the informant had not received the injuries at the point of time when the deceased received the ante-mortem injuries. 12. Learned counsel further submitted that in any event, the testi- mony of P.W. 4 cannot be believed as even the learned Court below has not placed any reliance on that part of his testimony to the effect that he was also assaulted by four of the appellants. Learned counsel further submitted that admittedly P.W. 1 was sent to the police station by P.W. 4 and on the basis of the report, the police came to the place of occurrence. The statement of P.W. 1 being the first in point pf time, the same should have been treated to be the first information report. Learned counsel submitted that even that station diary entry has not been produced in Court. 13. In this case, it occurs to us that the testimony of P.W. 4 cannot be relied upon. According to the Investigating Officer (P.W. 5) he examined the injuries sustained by P.W. 4 and then referred him to the Sadar Hospital. However, from a perusal of the injury report which was marked as Ext. 5, it appears that P.W. 6 has given an injury report in favour of P.W. 4 on a plain paper. The said injury report does not contain any date. It further appears that the said injury report is not addressed to P.W. 5. 14. Normally whenever a requisition is sent by an Investigating Officer to a Medical Officer requesting him to examine the injuries of a victim on the basis of the injuries found by him on the body of the victim, the Medical Officer gives his report on the back of the requisition itself. In any event, as the injuries were to be examined by a Medical Officer attached to a Government Hospital, it was expected that he would grant., certificate not on a plain paper, but on the forms prescribed therefor. 15. Further, no reason has been assigned by the prosecution as to why the said certificate is undated. 16. In any event, as the injuries were to be examined by a Medical Officer attached to a Government Hospital, it was expected that he would grant., certificate not on a plain paper, but on the forms prescribed therefor. 15. Further, no reason has been assigned by the prosecution as to why the said certificate is undated. 16. Even the learned Court below has acquitted the appellants Tilak, Karo, Bilo and Kokil in respect of charged framed against them under Section 323 I.P.C. on the ground that P.W. 4 himself stated in his evidence that he sustained injuries due to fall and, thus, the appellants could not have been found guilty for assaulting him. It is, therefore evident that the part of the testimony of P.W. 4 to the effect that he was assaulted by four of the appellants, aforementioned, when he tried to save the deceased, is false. 17. Further from a perusal of the first information report, it would appear that therein he alleged that accused Karo, Tilak, and Dilo assaulted him with a lathi whereas appellant Kokil Rai assaulted him with a sabal, but, P.W. 6 found only two simple injuries on his person, namely, one swelling and one laceration. 18. In the opinion of the doctor, the said injuries were caused by hard and blunt substance, such as, sabal, or lathi But the informant himself stated that he sustained. injuries by reason of fall. Further it is evident that P.W. 1 posed herself to be an eye-witness, although admittedly she was not. As noticed hereinbefore, there is also some discrepancy between the Medical evidence and the occular evidence with regard to the age of the injuries received by P.W. 4. 19. It further appears that P.W. 1 had gone to the police station after having come to learn that her husband had died. In such a situation, we fail to comprehend as to how the Investigating Officer (P.W. 5) could state that P.W. 1 stated before him that at that point of time, the deceased was being assaulted. 20. It will not be out .of place to mention here that even according to P.W. 4 only after the deceased Loknath Rai died, P.W. 2 came to the spot and, thereafter he went home to inform his mother (P.W. 1). 20. It will not be out .of place to mention here that even according to P.W. 4 only after the deceased Loknath Rai died, P.W. 2 came to the spot and, thereafter he went home to inform his mother (P.W. 1). It is only after that the P.W. 1 left the place of occurrence for going to Ahilyapur police station. The distance between the place of occurrence and the police station is about 10 kms. and in that view of the matter, it is unlikely that P.W. 1 would give a statement before the I. 0. that even at that point of time, the deceased Loknath Rai was being assaulted. 21. We have no doubt in our mind that as P.W. 1 had left the village for the police station after knowing fully well that Loknath Rai had died, the question of her stating before the I. O. that the deceased was still being assaulted does not arise. In such a situation, in our opinion, the statements made by P.W. 1 before the I. O. was of great importance. No reason has been assigned by the prosecution for not producing the said station diary entry. In a case of this nature, this Court has no other option but to presume that the information given by P.W. 1 before the Investigating Officer at the police station should have been treated as F.I.R. and non-production thereof in the Court has gravely prejudiced the appellants. 22. It is true that the deceased had already expressed his apprehension about the danger of his life. But that by itself is not enough to sustain the judgment of conviction. 23. Taking thus all facts and circumstances of this case into consideration, we are of the view that it will not be safe to pass a judgment of conviction on the basis of sole testimony of P.W. 4 as the chances of his not being an eye-witness to the occurrence cannot be ruled out. 24. In the result, this appeal is allowed. The judgment of conviction and sentence passed by the learned Court below is set aside. The appellants are on bail. They are discharged from their bail bonds.