V. D. GYANI, J. ( 1 ) THIS is an appeal from Jail. The appellant stands convicted under Sections 353 and 324 I. P. C. and sentenced to undergo three months R. I. on each count. He has also been fined Rs. 400/- on each count and in default of payment of fine, sentenced to undergo a months imprisonment (Its nature not specified ). The sentences have been directed to run consecutively. Out of the amount of fine Rs. 250/- has been ordered to be paid to the injured constable Ram Rakhan. ( 2 ) PROSECUTION case, in brief, was that on 21. 2. 1991 a police posse headed by an A. S. I. Bhagwansingh (P. W. 1) posted at police Station Sondwa, at the material time, had gone of village Bada Itara along with constables Ram Rakhan and Sudharsingh in connection with investigation of Crime No. 170/90 registered under Section 380 I. P. C. against the accused appellant who was a suspect in the said case. An entry was made in the General Diary of the police out post to this effect The A. S. I. was armed with Rifle and twenty rounds as per Ex. P-1. ( 3 ) IT is further alleged that on the night of 21. 2. 1991 When P. W. 1 Bhagwansingh along with constables Ram Rakhan and Sudharsingh surrounded the hut of the accused, who challenged them by shouting from inside his house to keep away otherwise, he would shoot arrows at them. It is the prosecution case that so threatening the appellant came out and in fact two or three arrows were shot by him, out of which one hit Ramrakhan in his left thigh. It is further alleged that the appellant after shooting arrows made good his escape. A report Ex. P/2 Dehati Nalish was lodged by constable Ramrakhan at Police out post Jeeran, on the basis of which a case under Section 307, 353 I. P. C. was registered against the appellant and investigation proceeded. The accused was arrested. on 5. 3. 1991 vide arrest memo Ex. PIS. Injured Ramrakhan has sent for medicalexamination on the same night around 2. 00 A. M. He was examined by Dr. Babar (P. W. 6), who gave his report Ex. P-S. After arrest of the accused appellant on 5-3-1991 as per arrest Memo Ex. The accused was arrested. on 5. 3. 1991 vide arrest memo Ex. PIS. Injured Ramrakhan has sent for medicalexamination on the same night around 2. 00 A. M. He was examined by Dr. Babar (P. W. 6), who gave his report Ex. P-S. After arrest of the accused appellant on 5-3-1991 as per arrest Memo Ex. P18 and an arrow was recovered at his instance vide Seizure Memo Ex. P-9 on completion or investigation the accused was charged with and tried for offences punishable under Sections 353 and 307 IPC The Trial court, however, found him guilty of the offences punishable under Sections 353 and 324 IPC. and sentenced him as noted above. Hence this appeal. ( 4 ) CONSIDERING the short terms sentence the appeal directed to be listed for final hearing on 34- 1992. It has been accordingly listed today. ( 5 ) AS this appeal has been preferred from Jail, the appellant had no legal assistance, Shri Salim was requested to appear as a miswrites which he accepted. Seeking some time to prepare for the case which was granted. ( 6 ) REFERRING to the prosecution case Shri Salim denounced it as a cook and bull story not worthy of any credence. he pointed the inherent improbabilities of the prosecution story and apparent inconsistencies in evidence. Learned counsel also criticised the assumptive approach of the trial court (as is evident from para 7 of impugned judgment) based on certain admissions made by the accused-appellant; in his examination under Sec. 3. 13 Cr. P. C. without either calling upon the prosecution to establish or searching for Such facts as allegedly admitted by the accused to have been established by the prosecution. independent witnesses though available, have not been examined by the prosecution and the only independent witness-Magan P. W. 5, does not support the prosecution case. According to him no intrinsic reliance can be placed on the testimony of other witnesses, who apart from being members of the Police Force, arc self contradictory in their evidence. The medical evidence does not support prosecution case. The trial Court has failed to notice the inherent improbability of the prosecution story and wrongly convicted the appellant, on an as sumptuous approach. The medical evidence does not support prosecution case. The trial Court has failed to notice the inherent improbability of the prosecution story and wrongly convicted the appellant, on an as sumptuous approach. ( 7 ) IT was also contended that on prosecution's own showing the act, committed by the accused, being only one, he could not have convicted under section 353 as well as under section 324 IPC. As even according to prosecution, force was used by the appellant and hurt 1/2 caused was an integral part of the same. The investigation in the case has been denounced as wholly partisan. ( 8 ) SHRI Chouhan, learned Dy. G. A. supporting the conviction as recorded by the trial court submitted that the police constables, should not be disbelieved merely because they happened to be members of police Force. ( 9 ) APPELLANTS defence at the trial was that the police was out to extort Rs. 2,000/- from him; other wise he was to be falsely implicated in the theft case, a fact which he had reported to the higher authorities, by making a petition to them. It was for this reason that he had been falsely implicated in the present case and as argued by Shri Salim, amicus-curiae this stand is highly probalized in view of the surrounding circumstances of the case. ( 10 ) IN view of the submissions made by Shri Salim the prosecution case calls for a close scrutiny. The genesis of prosecution story lies in the report (Ex. P-1-C) entered by P. W. 1 Bhagwansingh before starting for village Bada Hara to arrest the accused appellant. He was accompanied by Constable Sudharsingh and constable Ramrakhan and before starting had also taken a 20 round rifle with him. There is absolutely no reference to any information received from an informer, in this report Ex. P/i-C as mentioned by him in his written report Ex. P/3-C entered in the general diary wherein the A. S. I. Bhagwansingh (P. W. 1) has clearly stated that the had proceeded to village Bada Itara for arresting the accused, on the basis of reliable information received from an informer, in his evidence before the court. This witness his reiterated that he had gone to village Bada Itara on the basis of a reliable information received from an informer. This witness his reiterated that he had gone to village Bada Itara on the basis of a reliable information received from an informer. If that was so, the fact should have found a mention in the earliest report Ex P/i-C, when he left the outpost for Bada Itara but it is, missing. ( 11 ) SHRI Chouhan, learned Dy. G. A. submits that nothing material turns on this omission. The evidence of Ramrakhan the injured constable, who has testified that Nansu P. W. 2, (complainant in the theft case) had right from the beginning accompanied them to the village. Turning to the evidence of Nansu it is significant to note, as stated by him, he was sleeping in his house when the police posses awakened him and inform that the appellant had shot an arrow but no arrow injury was seen by him. It does not stand to reason that after the arrow injury was caused, the police posse would visit Nansu to report the fact of having sustained an arrow injury. This again belies the statement of P. W. 3 that Nansu was all along with them right from the beginning the day they started for village Bada Itara. ( 12 ) AS admitted by Nansu, he had lodged a report about theft in his house, and the police had come to the village two months after the report. It is here that the defence stand taken by the accused that he was being coerced to part with Rs. 2,000/ - or else he would be implicated in the theft case calls for consideration. Ordinarily in a case of theft or for that matter in any cognizance offence, prompt action on the part of police is expected. For two months the accused is not arrested, in the meanwhile he makes a petition against extortionate police officer, demanding Rs. 2,060/- from him, who two months after the lodging of report goes to {he village with two constables for arresting the accused, when this incident is said to have taken place: The reliable information received from an informer was the basis of their departure, which is missing from the earliest version as recorded in Ex. 2,060/- from him, who two months after the lodging of report goes to {he village with two constables for arresting the accused, when this incident is said to have taken place: The reliable information received from an informer was the basis of their departure, which is missing from the earliest version as recorded in Ex. P/i/c. ( 13 ) DEMONSTRATING the partition nature or the investigation Shri Salim Pointed out that although P. W. 3 Ramrakhan the injured constable, has in his evidence stated that he had removed the arrow from his thigh and thrown it. It is nobodys case not even the A. S. I. (P. W. i) or Sudharsingh (P. W. 4) that the accused had taken away the arrow with him while running away from the spot. Surprisingly enough almost a fortnight thereafter the prepares a memo Ex. P/9 under Section 27 of the Evidence Act for recovery of the arrow at the instance of the accused. It does not stand to reason when nobody has stated a word that the accused had taken arrow with him yet a fortnight after the incident it is shown to have been recovered at the instance of the accused, the matter does not rest here. It was pointed from the record that this arrow was sent to the State. Forensic Science Laboratory a month after its seizure along with trousers but the report received from the state F. S. L. has not been placed on record. Nothing could have prevented the prosecution from producing the same and it ought to have been produced as it would have held the court in arriving at the truth of the matter. Its non-production, as rightly urged by the learned counsel cans for an adverse inference against the prosecution. ( 14 ) IT is the prosecution case that the accused has shot three or four arrows. None of them is recovered or seized from the spot. This is what the investigation is. There were two constables with one A. S. I. and the accused according to them had immediately taken to his heels after shooting the arrows. As per Ex. P/2, the incident of shooting of arrows took place at 10. 30; within 15 minutes i. e. at 10. 45 the report was lodged at the police outpost, at a distance of 5 Kms. from the place of occurrence. As per Ex. P/2, the incident of shooting of arrows took place at 10. 30; within 15 minutes i. e. at 10. 45 the report was lodged at the police outpost, at a distance of 5 Kms. from the place of occurrence. Look at the anxiety of the police posse who had gone to arrest the accused armed with rind with 20 rounds, one of the members is said to have sustained an arrow injury, but none of them, has even claimed that they made any attempt to chase the accused and arrest him, the very purpose for that they had gone although they had surrounded his hut. It is nobodys case that, even if run the accused after fire in the area to prevent his escape. The accused is allowed to go acorn free. The anxiety is lodging a report which came to be lodged just within 15 minutes of the incident at 10. 45 How they covered this distance of 5 Kms. is yet another story. It is nowhere indicated as to how they managed to reach the police outpost within 15 minutes. ( 15 ) LEARNED counsel appearing as amicus curiae invited attention to the seizure memo of trousers again seized after a fortnight of the incident as per seizure memo (Ex. P-3) and described as blood stained but the report of the F. S. L. is not produced although it was sent for chemical examination. What prevented its seizure immediately on lodging of the F. I. R; more so, when the constable was also posted at the same police out post. It could have been seized next day morning if not in the night. In this connection it is also significant to note that neither the doctor who examined Ramrakhan the same night at 2. 00 A. M. (the date having changed after 12. 00) has not hinted either in his report Ex. P-S or in his evidence that he had noticed cut-marks on the trousers. Neither the requisition issued by the police for medical examination not the injury report contains any Such reference. Ex. P/6 the O. P. D. Ticket of the same date, does not either refer to the seizure of trousers or any Such cut mark having been seen by any of the doctors who had examined Ramrakhan (P. W. 3) on the next day of the incident. Ex. P/6 the O. P. D. Ticket of the same date, does not either refer to the seizure of trousers or any Such cut mark having been seen by any of the doctors who had examined Ramrakhan (P. W. 3) on the next day of the incident. It was also pointed out that the injury-reports (Ex. P-OS and P-6) arc silent about the history as to how this injury was caused to P. W. 3- Ramrakhan. Ordinarily one would expect Such a his long being given by the patient more so in this case when the injured happens to be a police constable, Adverting to the trial courts approach and appreciation the learned judge has merely noted that the accused has not challenged these reported in his cross-examination and admitted the same in his statement recorded under section 313 Cr. P. C. (See paragraph 11 of the Judgment) but what is the intrinsic worth of these reports has not been considered at all. ( 16 ) REFERRING to the Dehati Nalish, the F. L. R. (Ex. P12) learned counsel submitted that this report is in admissible in evidence as has been held by the supreme Court in Baiju v. State of M. P. , keeping aside the question of admissibility for a while, this report which was lodged within 15 minutes of the incident, is extremely unnatural and unreliable. The police outpost is about 5 Kms. away from the place of occurrence, as shown in the Dehati Nalish (Ex. P12 ). It is the prosecution case that the police party had gone in search of the accused who was wanted by the police in connection with a theft case registered against him. The accused had, in fact, as stated by Ramrakhan (P. W. 3), come out of his hut and escaped after shooting as arrow. A Police party headed by an Asstt. Sub- inspector who was armed with gun and 20 rounds and accompanied by two other constables, does not eyen make any attempt forecasting the accused, nothing was easier in the circumstances for the police officer that to fire a shot, at least in the air, more so, when one of the members of the police party was attacked. Denouncing the prosecution case as wholly unnatural, learned counsel submitted that it is a cock and bull story which cannot be relied upon. Denouncing the prosecution case as wholly unnatural, learned counsel submitted that it is a cock and bull story which cannot be relied upon. ( 17 ) REFERRING to paragraph 7 and 11 of the impugned judgement Shri. Salim criticized the approach of the Trial Court as basically erroneous inasmuch as instead of considering the prosecution case, as established and proved, the learned judge has stated with the admission made by the accused. Such an approach, has not been approved by the Supreme Court in Gajendra Singh v. State of UP. ( 18 ) IN order to sustain a charge either under section 353 or under section 324 I. P. C. it must be proved by the prosecution that the accused assaulted or used criminal force to a public servant or caused hurt while he was acting in the execution of his duty. Its stead of calling upon the prosecution to prove that it was the accused who assaulted or attacked the police constable the learned judge states with an answer given by the accused in his examination under section 13 Cr. P. C. , that P. Ws. 1, 2 and 4 were in police Uniform and that they had come to arrest him. On the basis of this statement the trial court has inferred the presence of the accused appellant on the spot. While considering the statement of the accused as recorded under section 313 Cr. P. C. the statement should be considered as a whole rather than piecemeal answers given to a particular question. Such a statement can at best be considered in support of a particular fact as established by the prosecution evidence but is does not absolve the prosecution of its primary duty to establish its case and can not be a substitute for legal proof. While the accused had admitted that the police party had come to arrest him it cannot be lost sight of this he had pleaded not guilty to the charge of having attacked. The accused had also denied all Such questions put to him that he came out of the house armed with bow and arrows. He had also come out with a case, in his statements recorded under section 313 Cr. P. C. that he had petitioned against the police as he was being coerced to part with some illegal gratification. The accused had also denied all Such questions put to him that he came out of the house armed with bow and arrows. He had also come out with a case, in his statements recorded under section 313 Cr. P. C. that he had petitioned against the police as he was being coerced to part with some illegal gratification. Since he did not accede to the demand, he had been falsely implicated. Merely picking up an answer from the statement of the accused is not desirable, that too without considering the prosecution case and the extent to which it had been established or proved. True it is that their testimony is not to be discarded or disbelieved merely on -the ground that they arc police constables as rightly urged by the learned Dy. Govt. Advocate. They arc also entitled to equal consideration. ( 19 ) THE trial court has relied upon the evidence of P. W. 1, P. W. 2 and P. W. 4 and all P. W. 1 and A. S. I. , P. W. 3 and P. W. 4, the two constables accompanying him to the village Bada Itara. According to the witness P. W. 3 Ram further had actually tried to catch him and it was at that time the arrows were shot be the appellant. He has further stated in his examination in chief that the moment Ramrakhan was hit, other ran away from the spot, According to Magan, Jaitra and Nansu of the village were with the police posse. Jaitra has not been examined by the prosecution and Magan does not support at all the prosecution case, Nansu (P. W. 2) is the complainant, in the theft case in which the accused appellant was sought to be arrested. His evidence is also of no avail to the prosecution. As already noted above he was sleeping at his hut when the police came and informed him of the incident. P. W. 1 A. S. I. has deviated on many points. According to Ramrakhan, Nansu was all along with them while P. W. 1 A. S. I. came to the spot on hearing hue and cry. It was he who narrated him the incident on his arrival on the spot while according to Nansu he was informed of the incident at his house on being awakened by the police. Ramrakhan has admitted that it was dark night. It was he who narrated him the incident on his arrival on the spot while according to Nansu he was informed of the incident at his house on being awakened by the police. Ramrakhan has admitted that it was dark night. P. W. 1 on the other hand has claimed that it was moon lit light. ( 20 ) THE fact of having received reliable information from an informer is not to be found in the earliest version as contained in Ex. P/i-C. As pointed out by the Supreme Court in Rahan Beg. v State of U. P. 3, a police officer who deviates from truth at the minor and insignificant point is not material of Implicit reliance. ( 21 ) THESE witnesses are making very convenient departures, that it is not question of lack of memory that while constables states that the complaint of theft case Nansu was all along with them. The sub-inspector comes out with a statement that he came on the spot on hearing hue and cry. The story that on being informed by an informer the police posse proceeded to the village for arresting the accused, has been introduced for the first time in the W APSI report Ex. P-3 (C ). No. Seizure is made of the arrows allegedly short by the accused. No seizure is made of the arrows allegedly shot by the accused. So much so, even the arrows actually hitting Ramrakhan and piercing trough and through was removed and thrown and shown to have recovered at the instance of accused after a fort night although sent for chemical examination hut the report is not placed on record. ( 22 ) IN face of these infirmities the finding of the guilt as recorded by the trial court can not be subscribed to. The learned Judge of the Trial court adopted a curious method of judging the prosecution case by placing reliance on certain answers given by the accused in his examination under section 313 Cr. P. C. ignoring the probabilities. In arriving at the conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. P. C. ignoring the probabilities. In arriving at the conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trust worthy on grounds which are fanciful or in the nature of conjectures. (State of Punjab v. Jagir Singh ). ( 23 ) APPLYING this yardstick of probabilities no police officer worth name, armed with gum and twenty round would have spared the accused shooting an arrow and injuring a member of the force, and merely rushing back to the police chowki for lodging a report making no attempt whatsoever at chasing the accused. These inherent improbabilities in the prosecution case have been lost sight of by the Trail court, it cannot be said that it was the accused who had shot the arrow or caused hurt to Ram Rakhan. ( 24 ) THE question whether the offence falls under section 353 or 324 I. P. C. in view of the finding recorded above, does not arise and need not be pursued. ( 25 ) THE appeal is accordingly allowed, the convictions and sentences as imposed by the trial court arc liable to be set-aside. They arc accordingly set-aside. The appellant be set at liberty forthwith. ( 26 ) IT is almost 5. 00 P. M. when the dictation has been completed. For this reason release warrant is not issued today which will be issued by tomorrow i. e. on 4-7-1992. Appeal allowed. .