Judgment S.H.S.Abidi, J. 1. Appellant Thakur Mahto alias Umesh Mahto has preferred this appeal against his conviction u/s. 302 of the Indian Penal Code and sentence to undergo rigorous imprisonment for life. 2. On 7-8-1970 at about 8-30 P.M. Md. Ishaque Mian (who died during the trial) gave fardbeyan (Ext. 2) to R.D. Singh, A.S.I. Lauriya police station to the effect that his son Jarban Mian was working as domestic servant in the house of Raj Chhatri Mahto for the last 12 years. I Last night, Jarban Mian, after taking meat and chura went to the house of his master for sleeping as usual. Near the house of Raj Chhati Mahlo there was Brahamsthan where jhirki a kind of play, was going on as it was a Mahahanjnanda day. At about 12 in the night, he went to sleep after participating in the play. In the next morning, he got information from one Jhingur Dusadh (not examined) that his son was lying dead in the cow-shed (bhuswal) of his master, so he and his wife went there and found Jarban Mian dead. There the mother of Rajchhatri Mahto told them that he might here died of snake biting, as in the late evening, the victim had told her that when he had gone to take out fodder for the cattle, he was bitten by a small snake upon which she asked him to get it cured by magic to which he said that such snake bite has got no effect and he went away saying so. The informant, with his wife went away their home weeping. The dead body of his son was brought by Nathuni Mian, Dhuman Mian and Gumani Mian for burial. Some people advised him to inform the police to which he said that when his son has been bitten by snake, there was no question of lodging any report. Those who had brought the dead body to the door of the informant again took back the same to the Dhari of the master, Rajchhatri Mahto. He has got no suspicion about his sons death. Babu Saheb told him that after coming of the police, the dead body will be buried and so, he gave this fardbeyan on the basis of which, the First Information Report (Ext. 3) was registered on 10-8-1970 at 6.30 P.M. against unknown being U.D. Case No. 4/70. He has got no suspicion about his sons death. Babu Saheb told him that after coming of the police, the dead body will be buried and so, he gave this fardbeyan on the basis of which, the First Information Report (Ext. 3) was registered on 10-8-1970 at 6.30 P.M. against unknown being U.D. Case No. 4/70. Then inquest report was prepared which is Ext. 4 and the dead body was sent for post mortem examination. Dr. N.K.N. Sinha, C.A.S. Bettiah Hospital (P.W. 6) conducted the post mortem examination on 9-8-1970 and found the whole body of the deceased swollen and lithotomy state of de-composition, extensive bruises on the whole of back sides and front of chest, face, both exillary regions and both upper arms. On dissection, clotted blood was found under kneeth the tissues of the bruise area. Both plural cavaties contained blood, more on right side about one point with haemetome in both lungs. Stomach contained undiagested rice. Intestines were all disturbed and contained gas. There was a little amount of urine in the bladder. In his opinion the death was due to injury caused to lungs and injuries were caused by some hard and blunt substance. Time elapsed since death 3 to 4 days. On the basis of the postmortem report (Ext. 1), the case was investigated by Bachan Prasad Singh (not examined) who submitted charge sheet against the appellant. One Dip Narain Pandey (P.W. 4) of the same village is said to have seen Ramagya Mahto and Thakur Mahto bringing out some one on a cot from their house in sleeping position when he was passing through the front of the house of Rajchhatri Mahto and going to his khalihali at 2 A.M. He has said that on his enquiry, Thakur Mahto replied to him that as his wife is ill so he is taking her to Sathi station. In the next morning he found the dead body of the deceased and watch of the appellant there. After collecting the evidence, the Investigating Officer submitted charge sheet against the appellant. 3. The accused in defence of his case, has denied the prosecution case and alleged that he has been falsely implicated in. this case. In the next morning he found the dead body of the deceased and watch of the appellant there. After collecting the evidence, the Investigating Officer submitted charge sheet against the appellant. 3. The accused in defence of his case, has denied the prosecution case and alleged that he has been falsely implicated in. this case. However, one Munshi Choudhary (D.W.1) the Mukhiya of the village, has been examined who has said that he was Mukhiya of the village in the year 1970 and that Jarban Mian was not the servant of the accused and also was not sleeping in his house. 4. The prosecution, in support of its case, has examined 7 witnesses. P.W.1 Islam Mian (not mentioned in the F.I.R.) has said that he went to the door of the deceased on alarm and saw the victim lying dead in the same night. Gumani Mian P.W. 2 has said that next morning, he heard about the death of Jarban Mian and went to the place of the occurrence and found the dead body. He has said that the motive of the said occurrence was that he had got illicit relation with the wife of Ramagya Mahto. P.W. 3, Kamachha Shukla has also said about the said motive of illicit relationship. He had seen the black spot round the neck of the victim. Dip Narain Pandey (P.W. 4) has said about the illicit relationship and also said about taking out something on the cot by the appellant and Ramgya Mahto and giving out version that his wife was ill. P.W. 5 is Mostt. Hakiwana, the mother of the deceased who has said that she had been informed for the first time by Jhingur Dusadh about the death of his son. Dr. N.K.N. Sinha (P.W.6) had held the post mortem examination and P.W. 7 Gopal Prasad, a formal witness has proved the inquest report (Ext. 1) and F.I.R. (Ext. 3). 5. The trial court, after considering the entire material on record, has convicted the accused appellant and sentenced him as said above. 6. Learned counsel for the appellant has urged that the conviction of the appellant is bad as there was delay in lodging the report. Further, if the appellant had committed the offence, then why they were present at their house and had gone to see the victim. 6. Learned counsel for the appellant has urged that the conviction of the appellant is bad as there was delay in lodging the report. Further, if the appellant had committed the offence, then why they were present at their house and had gone to see the victim. If at all they had killed the victim, why they will put the dead body in their own house. It has also been urged that the Investigating Officer has not been examined in this case and there is also delay in examination of the witnesses. It was also said that there was no circumstances to connect the appellant with the said offence. To appreciate these contentions, the evidence of the witnesses will have to be scrutinised with care and caution. 7. In this case, the Investigating Officer has not been examined though the first information report has been brought on record by P.W. 7, Gopal Prasad who has said that the fardbeyan (Ext. 2) as in the writing of Ram Dayal Singh and he had written the statement of Md. Ishaque. He also recognised his writing on Ext. 2 and the formal F.!.R. (Ext. 3). In cross-examination, he has said that he does not know whether Ram Dayal Singh is in service or not and he has got no personal knowledge about the contents of the fardbeyan. Both the documents had not been written in his presence. On recall, he has also said that inquest report (Ext. 4) had been prepared by Ram Dayal Singh, A.S.I. He has also said that paragraph 17 of the case diary of this case was, in the pen of A.S.I. Bechan Prasad Singh. In crossexamination, he has said that inquest report and the case diary had not been prepared by him. These documents have been brought on record by P.W. 7 u/s. 294 (3) of the Cr.P.C. and the genuineness of these documents have not been disputed by the defence, so they have been read in evidence. In crossexamination, he has said that inquest report and the case diary had not been prepared by him. These documents have been brought on record by P.W. 7 u/s. 294 (3) of the Cr.P.C. and the genuineness of these documents have not been disputed by the defence, so they have been read in evidence. Sec. 294 of the Code, provides that "where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of the each such document and the list of the documents shall be in such form as may be prescribed by the State Government, and where the genuineness of any document is not disputed such document should be read in evidence in any enquiry, trial or other proceeding under this Code, without proof of the signature of the person to whom it purports to be signed; provided that the Court may, in its direction, require such signature to be proved". No doubt, these documents had not been brought on record on the basis of any application and the accused had not been called upon to admit or deny the same. Yet, P.W. 7 has brought these documents on record in his evidence and the genuineness of these documents has not been disputed by the appellants counsel and so, they are being read in evidence. 8. P.W. 1 Islam Mian and P.W. 2 Gumani Mian are the two witnesses who reached the spot on hearing about the death of the victim. Both of them are said to have carried the dead body of the victim to the house of the informant for burial. P.W.1 says about this occurrence that on the night of Thursday, he heard alarm and went to the door of RajChhatri Mahto and saw Jarban Mian dead. His dead body was in the fodder shed (bhuswal). He saw black spot on the neck of Jarban Mian. The cow-shed belongs to Ramagya Mahto who is cousin of Rajchhatri Mahto and used to live in the same house. Ishaque Mian in now dead. His dead body was in the fodder shed (bhuswal). He saw black spot on the neck of Jarban Mian. The cow-shed belongs to Ramagya Mahto who is cousin of Rajchhatri Mahto and used to live in the same house. Ishaque Mian in now dead. He brought the dead body of Jarban Mian to the door of Ishaque Mian and after some time, they took the dead body to the door of Rajchhatri Mahto and kept the same there as it appeared to be murder case. He recognised Thakur Mahto. He has said that he did not know that Thakurs name is also Umeshwar Prasad who was a leader and was not examined by the police. He had seen the dead body of Jarban Mian on a cot in Bhuswal. He has said that he did not say to the police that he had seen black spot round the neck of the deceased. He denied that he had been giving false evidence. P.W. 2 is Gumani Mian who has said that about 14 years back when he was at his door, he heard alarm and went to the door of Rajchhatri Mahto where many people had assembled and he saw the dead body of Jarban Mian on a cot in the Bhuswal of Rajchhatri Mahto. The dead body was covered by a cloth. Rajchhatri Mahtos mother said that Jarban Mian had died on account of snake bite. He brought the dead body of Jarban Mian to the house of Ishaque Mian for burial. He, Nathuni Mian and Islam Mian brought the dead body. At the door of Ishaque Mian he saw the black spot round the neck of the deceased, then came to know that he had been killed. Again, they took the dead body to the Bhuswal of Rajchhatri Mahto. About a week back he had come to know that Jarban Mian was entangled with the wife of Ramagya Mahto and that Jarban Mian had told him that Ramagya and Thakur had given out threat to him to kill. This thing was disclosed by him about 8-10 days prior to the occurrence. Jarbans mother and father had gone to see the dead body in the Bhuswal. In the evening, the Investigating Officer came. This thing was disclosed by him about 8-10 days prior to the occurrence. Jarbans mother and father had gone to see the dead body in the Bhuswal. In the evening, the Investigating Officer came. He has said that Ramagya Mahto had a talk with him and the father of the deceased, before arrival of the police and as it is sasid, he had won over by the accused after giving him temptation. In his cross-examination, he has said that his house was about 6 bighas in the north from the house of Rajchhatri Mahto. There are 500-600 houses in the village of different castes. Koeries are the members of the Communist Party and Thakurs are the members of the Congress Party. He has also said that he had seen the dead body of Jarban Mian in the Bhuswal. He was wearing ganji and lungi. Jarbans father had said that round the neck of Jarban Mian, there was sign of assault. He (witness) said that Jarban Mian had been murdered and so he should be taken to the house of his master. He had no talk with the father of the victim as he had already known the same. He used to come to the house of Rajchhatri Mahto. He had no talk with the women in the house. He had said to the police that Jarban had told him that Thakur had given threat to kill him. He had not said to the police that the victims mother and father had gone to see the dead body. He had said to the police that Ramagya had a talk with the mother and father of the victim. He said to the police that he had heard the rumour that Jarban Mian was involved with the wife of Ramagya Mahto. He denied that he was giving false evidence. P.W. 3 is Kamachha Shukla who has said that about 12 in the night, jhirkhee was being played and Jarban Mian was also playing the same and after 12 in the night, he went to sleep in the Thakurs bhuswal. Next day, on hearing about the death of Jarban, he went there and saw the dead body in the bhuswal of Rajchhatri Mahto on a cot. In cross-examination, he has said that his statement was recorded after two days of the occurrence by the police who had came at the door of Thakur Mahto. Next day, on hearing about the death of Jarban, he went there and saw the dead body in the bhuswal of Rajchhatri Mahto on a cot. In cross-examination, he has said that his statement was recorded after two days of the occurrence by the police who had came at the door of Thakur Mahto. He has got no enmity with Dip Narain Pandey and there is no visiting term with him. At the time of play of jhirki, this witness had talked with Jarban Mian, the victim, who was going to sleep. He has got no concern with the family of Rajchhatri Mahto. He had not seen the victim talking with Rajchhatri Mahto. There is no written document about Jarban being servant of Rajchhatri Mahto. He had heard that Rajchhatri has died. There was about 20 people and out of them Habib, Gumani, Islam were also there. He had not met Dip Narain Pandey and he had not talked with him also. He had talk with Dip Narain Pandey before all persons and there was other person present there at the time of talking and had not said about the talk to anybody. He had seen the dead body being taking to the door of Ishaque Mian but after 2-3 minutes, the people again brought back the dead body. When the people brought the dead body to the house of Ishaque, he went home and had not forbidden the people to talk out the dead body. He did not enquire from Rajchhatri Mahtos mother about the place or snake biting nor made further enquiries about the snake biting. He cannot say about the length and width of black spot. He had heard about the involvement of the victim with the wife of Ramagya Mahto. He had no talk with the wife of Ramagya nor he had seen her talking with anybody. He has said that he had told the police that Ishaque has been won over by the accused and it was not a fact that the accused had been implicated falsely. P. W. 4 is Dip Narain Pandey who too has said about the jhirkhee play till mid night and Jarbans playing there. There was no talk about Jarbans snake biting. P. W. 4 is Dip Narain Pandey who too has said about the jhirkhee play till mid night and Jarbans playing there. There was no talk about Jarbans snake biting. After the jhirkhee was over, he went home and when at about 2 A.M. he was going to his khalihan to see the kept bandages, he saw that Ramagya and one another had beer keeping somebody sleeping on the cot and they were coming out from their residential house. The person was covered with and on his enquiry, Thakur said to him that his wife was not well and for that they are taking her to Sathi railway station. The cot was kept in the bhuswal. He went away to his khalihan. In the next morning he heard that Jarban had died. He saw his dead body in the Bhuswal which was belonging to Rajchhatrio There was rumour in the village that Jarban had got illicit relation or connection with the wife of Ramagya Mahto who had given threat to Jarban to kill him. He had gone to account that is why his statement was recorded after six days by the police. In cross- examination, he has said that he was not a friend of Jarban Mian who had told him that Thakur and Ramagya had threatened him to kill. He had good relations with the family of Thakur Mahto. He denied that he had gone to the house of Rajchhatri Mahto at 2 A.M. on the day of occurrence. He had no talk about the occurrence with Thakur. At about 7 A.M. he had gone away to cattle field at the distance of 8 kms. from the village and he stayed about 4-5 days at his sasural. He had said about the said occurrence in his sasural and also to his father-in-law. He had talk with Kamachha Singh at about 6.25 A.M. at the door of Rajchhatri where 30-40 people where present with Ishaque Mian who was weeping there. He did not say to others also as said to Kamachha Singh. He has got no concern with the wife of Ramagya who has no talk with him and he has not said about the rumour of illicit relation with the wife of Ramagya. He had said to the police that he had seen the dead body kept in Bhuswal. 9. He has got no concern with the wife of Ramagya who has no talk with him and he has not said about the rumour of illicit relation with the wife of Ramagya. He had said to the police that he had seen the dead body kept in Bhuswal. 9. This is the entire evidence led by the prosecution but the fact remains that the informant Md. Ishaque, father of the deceased is dead and so, is Jhingur Dusadh. AST, R.D. Singh has not been examined and so also is Bachan Prasad Singh, the I.O. 10. As regards the delay in lodging the report, the occurrence is said to have taken place on 6-8-1970 in the night and fardbeyan had been recorded in the village at 8.30 A.M. on 7-8-1970. The P.O. village Gunahi is at a distance of miles from the police station Lauriya. The people had come to know about the occurrence in the next morning. How the police came, has not been said in the fardbeyan nor any witness has said nor the Investigating Officer has been examined. But from the events noted above, it appears that the fardbeyan had been recorded at 8.30 A.M. so there was no delay in lodging the same. When the police recorded the same, it has been brought on record as Ext. 2. It does not give out that it was a case of murder but it was a case of snake bite. The inquest report was prepared and the dead body was sent for post mortem examination which was done on 9-8-1970 and then it transpired that it was a case of murder so, F.I.R. was registered on 10-8-1970 against unknown persons and as such, there was no delay in lodging the F.I.R. It was during the course of investigation that the name of the appellants came to light rather they were involved which appears to have been made out from the statements. 11. As regards the involvement of the deceased with the wife of Ramagya, the evidence of P.Ws. 2, 3 and 4 is there that there was an illicit connection between Jarban Mian and the wife of Ramagya Mahto. As seen earlier, P.Ws. 11. As regards the involvement of the deceased with the wife of Ramagya, the evidence of P.Ws. 2, 3 and 4 is there that there was an illicit connection between Jarban Mian and the wife of Ramagya Mahto. As seen earlier, P.Ws. 3 and 4 have said about the appellant and Ramagya Mahto regarding taking out somebody sleeping on the cot from their residential house and keeping in Bhuswal and also on enquiry, giving out that wife of Ramagya was ill. P.W. 3 Kamachha Shukla who, on seeing the deceaseds dead body, had said that it was a case of murder and not of snake biting when he has said in paragraph 4 of his evidence that he had not seen the sign of snake biting but had seen a black spot round the neck of the deceased. He does not say as to whether he had said to the police about this thing or not. But he has said that about the collusion bctween Ishaque and the appellant. If this witness on statement before the police, would have given out this version, at the time when the police had come to the village to record the statement of Ishaque Mian, then it could be possible to believe his version. He was definitely in the village when the fardbeyan was recorded. In this case, the Investigating Officer has not beell examined. If he would have been produced then, from his statement it would have come out as to whether he had given about the involvement of the deceased with the wife of Ramagya and who gave threat to kill the deceased. The next witness is Dip Narain Pandey who has been examined after six days of the occurrence and has said that he had a talk with Kamachha Shukla in the morning. In paragraph 9 of his statement he denied to have gone to the house of Rajchhatri Mahto at 2 A.M. though in paragraph 3 of the same, he has said that he was going to his khalihan at about 2 A.M. Dip Narain Pandey has got information only from Kamachha Shukla as said by him in para 5. In paragraph 9 of his statement he denied to have gone to the house of Rajchhatri Mahto at 2 A.M. though in paragraph 3 of the same, he has said that he was going to his khalihan at about 2 A.M. Dip Narain Pandey has got information only from Kamachha Shukla as said by him in para 5. Whereas, this witness has himself denied in paragraph 22 of his evidence that he had gone to house of Rajchhatri Mahto at 2 A.M. In these circumstances no reliance can be placed upon the information given by Dip Narain Pandey to Kamachha Shukla about the dead body being taken out by the appellant from their residential house. As regards the illicit relation, only P.Ws. 2,3 and 4 have said so. There is nothing else to show that there is any evidence on this aspect and so, these evidence are not to be relied on. As such, the matter of illicit relationship and the appellant being bringing the dead body from the house becomes a doubtful matter. 12. Ishaque Mian has not been cited as a witness in the first information report but for a witness to be relied on it is not necessary to be cited in the first information report. A witness can see the occurrence and his presence at the spot may be made out from the statement given by the witness and also the surrounding circumstances. No doubt, the victim has been done to death but the circumstances in which the death has occurred, does not make out to the hilt that it was the appellant who had committed the offence. The circumstantial evidence to be relied on must be clinching and should be consistent with the guilt of the accused. The chain of evidence should also be so complete as not to leave any reasonable ground for a conclusion inconsistent with the innocence of the accused. Here, the facts are not so consistent and the chain is missing to establish the link of the appellant with the crime. The evidence of P.Ws. 2, 3 and 4 about the illicit relationship and further the accused taking out a person on the cot, has not been found to be worth reliance so, the connection of the appellant with the crime, is not well established. The evidence of P.Ws. 2, 3 and 4 about the illicit relationship and further the accused taking out a person on the cot, has not been found to be worth reliance so, the connection of the appellant with the crime, is not well established. Further non-examination of the Investigating Officer has also caused prejudice to the appellant as the prosecution has not been able to get it from the Investigating Officer as to why the witnesses have said so. As such, prejudice has been caused to the appellant and hence, he is entitled to the benefit of doubt. 13. In the result, this appeal is allowed. The order of his conviction and sentence is hereby set aside and as the appellant is on bail, he is discharged from the liability of bail bonds.