VIRENDRA SARAN, J. ( 1 ) THIS criminal appeal has been filed by Ratiram against his conviction u/s 304 I. P. C. and a sentence of seven years R. I. , passed by Sri J. N. Bansal, I Additional Sessions Judge, Buiandshahr, dated 26/6/1979, in S. T. No. 529 of 1978. ( 2 ) THE prosecution case, which is spelled out from the First Information Report, lodged by Dalpat Singh, is that informants younger brother Charan Singh lives separate from him. On 15/9/1976 at 6 P. M. Charan Singh was scrapping grass in order to store Makka in his gher. For this purpose he was cleaning the Gher. The Gher of appellant Ratiram is close by Charan Singh. Accused appellant Ratiram of having committed theft of the bells of his cattle. This led to a quarrel between the two. The appellant is said to have picked up a spade (Phavra) and hit Charan Singh with the same. Charan Singh fell down and became speechless. The incident was seen by Than Singh, Khem Singh and Kripal Singh. ( 3 ) THE informant took his injured brother to the Police Station where he lodged an F. I. R. on 15. 9. 1976 at 8. 40 P. M. The injured Charon Singh was sent for medical examination 10 Shikarpur Hospital where he was medically examined and the Doctor noted a single injury on his person. The Doctor noted the following injury on the person of Charan Singh. Incised wound 6-1/2 cm- x 1/2 cm. x bone deep on top of head. ( 4 ) ACCORDING to the doctor, this injury was fresh in duration. It is noteworthy that no time of medical examination is noted in the injury report and even during his evidence P. W. 8 Dr. A. K. Agarwal has not stated the time when he medically examined injuries of Charan Singh. ( 5 ) CHARAN Singh died on 16/9/1976 and his dead body was sent for post-mortem examination. The post-mortem examination was conducted by P. W. 3 Dr. S. C. Gupta on 16/9/1976 at 5. 30 P. M. The post-mortem report reveals that the deceased had two injuries which are as follows: 1 Stitched wound on the scalp 2-1/2 x, linear, across the mid line of skull 5-1/2 above and behind the bridge of nose and on opening the stitches, it was found to be scalp deep. 2. S. C. Gupta on 16/9/1976 at 5. 30 P. M. The post-mortem report reveals that the deceased had two injuries which are as follows: 1 Stitched wound on the scalp 2-1/2 x, linear, across the mid line of skull 5-1/2 above and behind the bridge of nose and on opening the stitches, it was found to be scalp deep. 2. Contusion with haematoma on the left side of skull in the parietal and temporal region in an area of 6_1/2t1 x 4-1/2, ( 6 ) IT is significant to note that the injury No. 2 found on the person of the deceased was a contusion with haematoma on the left side of skull in the parietal and temporal region and the internal examination revealed extensive haematoma underneath the scalp and there was liner fracture of left parietal bone extending to the left temporal bone and left middle cranial fossa. The doctor also noticed fracture of left middle cranial fossa continued in the left parietal fracture. The doctor was of the opinion that death was due to coma and shock resulting from the injury of head. ( 7 ) AFTER investigation the case was charge sheeted; At the trial learned I Additional Sessions Judge, Bulandshahr convicted and sentenced the appellant as has been mentioned above. ( 8 ) AGGRIEVED by the order of conviction and sentence the appellant has filed the present appeal in this court. ( 9 ) I have heard Sri P. N. Misra, Counsel for the appellant and learned State Counsel at length and perused the evidence on the record. ( 10 ) IN support of its case, the prosecution has examined three eye-witnesses, namely P. W. 1 Dalpat Singh, own brother of the deceased, P. W. 2 Kripal Singh and P. W. 4. Than Singh, who both are cousins of the deceased. Their relationship is revealed by P. W. 1 Dalpat Singh who has stated in the cross-examination that Kalua and Durjan were real brothers. Mangal Singh is son of Kalua and P. W. 2 Kripal is son of Mangat. Durjan had two sons, Behari and Khema. Dalpat P. W. 1 is son of Behari while P. W. 4. Than Singh is son of Khema. Thus we see that all the three eye wit nesses are closely related inter se and to the deceased. Their evidence has to be read with caution. Durjan had two sons, Behari and Khema. Dalpat P. W. 1 is son of Behari while P. W. 4. Than Singh is son of Khema. Thus we see that all the three eye wit nesses are closely related inter se and to the deceased. Their evidence has to be read with caution. ( 11 ) THERE is a room for doubt whether these witnesses actually saw the assault on the deceased. As has been mentioned above, in the F. I. R. there is no mention that any blunt weapon was used in the assault. On the other hand the only weapon, mentioned in the F. I. R. is a Spade. The situation remains the same when we go through the depositions of the three eye-witnesses. None of the witnesses have stated that the appellant was armed with any blunt weapon. In the second place, none of the witnesses stated that they saw the blow being repeated. It is significant to note that the doctor, who examined the deceased; during his life time, noticed only one incised wound on top of the head of the deceased. It appears that due to the existence of hairs on the head the contusion could not be noticed by the doctor and similarly the eye-witnesses also could not notice the contusion on the head. Since only the incised wound was visible the eye-witnesses who appear to have played upon their imagination and lodged the F. I. R. stating that a spade blow was given on the head of the deceased by the appellant. It ailr> ears that thereafter haematoma started developing and the deceased died. This injury examined during the life time of the deceased by Dr. A. K. Agarwal P. W. 8, is repeated in the post-mortem examination report, as injury No. 1, which is a stitched wound. It, however, appears that the three eye-witnesses did not actually see the assault and the manner of the assault on the deceased and they came later on, when the deceased was lying speechless. It is noteworthy that the blunt weapon injury was also a massive injury on the head and the non-mention of the user of a blunt weapon by the eye-witnesses goes to cast a serious doubt about their having seen the incident with their own eyes. It is noteworthy that the blunt weapon injury was also a massive injury on the head and the non-mention of the user of a blunt weapon by the eye-witnesses goes to cast a serious doubt about their having seen the incident with their own eyes. ( 12 ) THE cross-examination of P. W. 2 Kripal Singh also goes to show that the witnesses had reached the spot later on. In para No. 4 of his statement P. W. 2 Kripal Singh stated that when he reached the Gher, he saw Charan Singh bleeding and there was no one else. He is emphatic that when he reached the Gher there was no other witness at that time and that P. W. 4 Than Singh was accompanying the witness. This shows that the witness had arrived after the deceased had sustained injuries. It appears that the deceased had received injury and he fell down in speechless condition and thereafter the witnesses arrived and they had not actually seen the assault. The Gher of the appellant is also close by, the suspicion fell on the appellant, may be due to the fact that he had been earlier suspected of stealing bells of the cattle of the deceased. At any rate, it appears that the appellant was not pulling on well with the deceased or his-family members. ( 13 ) COMING to the F. I. R. , it appears that the F. I. R. has not been lodged at the time and manner, suggested by the prosecution. It is mentioned in the F. I. R. that the first informant took his injured brother to the police station and thereafter he went to the Hospital but cross-examination of P. W. 1 Dalpat reveals that in all probability this is not a correct state of affairs. Dalpat stated in his examination-in-chief that he first went to the Police Station. Again in the next breath he made a contradictory statement and stated that at Shikarpur he first went to the Hospital and then from Hospital he went to the Police Station and lodged the F. I. R. The fact that the brother of the informant was seriously injured further shows that it would have been natural on the part of the informant to have rushed to the Hospital for the quickest possible medical aid rather to go to the police station and loose time. This goes to show that there is a room for doubt that the F. I. R. of the present case is ante-timed. This also goes to cast a serious doubt on the correctness If the prosecution case. At this very place, it may be repeated that it is not understandable why Dr. A. K. Agarwal did not note the time of medical examination in the medical examination report. The fact remains that in the absence of the said time, the time of the F. I. R. cannot be cross checked. In the above state of affairs the partisanship of the three eye-witnesses becomes all the more important. There is no independent witness in this case. ( 14 ) IN view of what has been mentioned above, I am of the opinion that the appellant is entitled to the benefit of doubt ( 15 ) IN the result, the appeal is allowed. The conviction of the appellant u/s 304 I. P. C. and sentence of seven years R. I. , passed by the court below, are set aside. The appellant is on bail. He need not surrender. His surety bonds are discharged. Appeal allowed. .